Iroquois Manufacturing Company v. Annan-Burg Milling Company
| Decision Date | 02 December 1913 |
| Citation | 161 S.W. 320,179 Mo.App. 87 |
| Parties | IROQUOIS MANUFACTURING COMPANY, Respondent, v. ANNAN-BURG MILLING COMPANY et al., Appellants |
| Court | Missouri Court of Appeals |
Submitted November 3, 1913.
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
George F. Beck for appellants.
(1) The affidavit filed with defendants' answer properly put in issue plaintiff's corporate existence. R. S. 1909, sec 1985; White v. I. O. O. F., 30 Mo.App. 682; Meyer Bros. v. Insurance Co., 73 Mo.App. 166. (2) The rule denying the right to question, in a collateral proceeding, a corporation's existence applies only where the corporation had a de facto existence. White v. I. O O. F., 30 Mo.App. 682; Board of Trade v. Building Co., 136 Ill.App. 606; Krutz v. Town Co., 20 Kan. 397; Jones v. Hardware Co., 21 Col. 263; Martin v. Deetz, 102 Cal. 55. (3) The reason of the rule is that it would be against public policy to allow the parties to deny the existence of a de facto corporation. 2 Cook on Private Corporations (5 Ed.), sec. 637, p. 1422; 2 Morawetz on Private Corporations, sec. 750; Clark & Marshall on Private Corporations, sec. 243. (4) The Iroquois Manufacturing Company cannot maintain the suit as a corporation de facto, because all the essentials of a de facto corporate existence are lacking. It is a partnership. 10 Cyc. 247; 2 Morawetz on Private Corporations, sec. 777; Mechem on Private Corporations, secs. 285 and 260; Clark & Marshall on Private Corporations, pp. 241 and 260. (5) The partnership cannot maintain the suit as a corporation on the theory of estoppel because the partners never claimed to be a corporation de facto. Board of Trade v. Imperial Building Co., 136 Ill.App. 606; Krutz v. Town Co., 20 Kan. 397; Jones v. Hardware Co., 21 Col. 263; Martin v. Deetz, 102 Cal. 55. (6) Defendants never recognized plaintiff as a corporation. The name Iroquois Manufacturing Company does not imply incorporation. Clark v. Insurance Co., 7 Mo.App. 77; White v. I. O. O F., 30 Mo.App. 682; 2 Cook on Private Corporations, secs. 637 and 243. (7) Plaintiff waived any question of estoppel by failing to specifically plead it. Railroad v. Ry. & Navigation Co., 22 F. 245; Whiteside v. Magruder, 75 Mo.App. 364; Hammerslough v. Cheatham, 84 Mo. 13; Bray v. Blount, 77 Mo. 235.
Russell I. Tolson for respondent.
This is an action on a bond given by appellants to respondent on an appeal from a judgment of the circuit court to this court, in a cause in which the respondent here was plaintiff and the Annan-Burg Milling Company defendant, the Annan-Burg Milling Company executing it as principal, and Henry Burg and George F. Beck as sureties, one the attorney, the other a member of the defendant corporation. It is for the sum of $ 200, and after reciting that the Annan-Burg Milling Company has appealed from the judgment rendered against it and in favor of the Iroquois Manufacturing Company in the circuit court, city of St. Louis, for the sum of $ 53.80, together with costs, it contains the usual conditions that appellant should prosecute its appeal with diligence to a decision in the appellate court, etc. Averring that the condition has been broken in that the principal had not prosecuted the appeal, but that the appeal had been dismissed and the judgment of the circuit court affirmed, and that execution had issued on the judgment of this court, and had been returned unsatisfied, judgment is asked for the penalty of the bond and damages in $ 109.83, and interest and costs.
An answer was filed to this on the 21st of April, 1911, which consists of a general denial, not under oath. On the 21st of May, 1911, George F. Beck filed an affidavit that at the time of the commencement of the action, there was not, nor is there now, any such corporation as the Iroquois Manufacturing Company named as plaintiff herein. The case was tried by the court, a jury being waived, and evidence introduced on the part of plaintiff which included the bond, the judgment of the circuit court in the case of Iroquois Manufacturing Company v. Annan-Burg Milling Company, the judgment of affirmance by our court, its mandate of affirmance, as also the execution issued out of the circuit court against the Annan-Burg Milling Company in that cause and the nulla bona return of the sheriff on the execution. Defendants demurred to the evidence. That was overruled. Whereupon defendants introduced in evidence, over the objection of respondent, a deposition which tended to prove that the Iroquois Manufacturing Company was a partnership of three individuals, carrying on business under that name and was not a corporation. At the conclusion of the testimony the court, refusing a declaration asked by the appellants here, which was in the nature of a demurrer to the evidence, rendered judgment against defendants for the penalty of the bond and awarded execution for the debt, interest and costs. From that defendants have duly prosecuted their appeal to this court.
The affidavit interposed was undoubtedly considered by the trial court as ineffective for the purpose of raising an issue. While in the caption of the petition, after the name of the plaintiff, the words, "a corporation," appear these are mere words of surplusage, disregarded even in a criminal cause. [State v. Murphy, 49 Mo.App. 270.] It has often been decided that the caption or style is no part of the petition. In the petition itself there is no averment that plaintiff is a corporation. If a partnership and the members not made plaintiffs, there is a defect of parties. Appellants attempted to raise the issue of corporation by affidavit filed long after the filing of a general denial. It is true that section 1985, Revised Statutes 1909, provides that where the parties to the action sue or are sued as a corporation, it shall not be necessary to prove the fact of such incorporation unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause. But this does not make the affidavit a part of the answer. It is in aid of the answer but not of the answer. This section is to be construed in connection with other provisions of the statute. Conceding that we have here a defect of parties, that is, it appearing by evidence in the case and outside the pleadings that "Iroquois Manufacturing Company" is the...
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