Junction Placer Mining Co. v. Reed

• Decision Date: 20 November 1915
• Citation: 153 P. 564,28 Idaho 219
• Parties: JUNCTION PLACER MINING CO., a Corporation, Respondent, v. M. O. REED et al., Appellants
• Court: Idaho Supreme Court

153 P. 564

28 Idaho 219

JUNCTION PLACER MINING CO., a Corporation, Respondent, v. M. O. REED et al., Appellants

Supreme Court of Idaho

November 20, 1915

MOTION TO DISMISS APPEAL-MINING CLAIMS-WATER RIGHTS-ACTION TO QUIET TITLE-FOREIGN CORPORATIONS-STATUTORY CONSTRUCTION-SUFFICIENCY OF EVIDENCE.

1. Under the provisions of sec. 4434, Rev. Codes, as amended by Sess. Laws 1911, p. 379, the district judge has authority to control the getting out of the reporter's notes and to grant necessary extensions of time for the reporter to transcribe his notes and to make all orders in relation thereto. (Fischer v. Davis, 24 Idaho 216, 133 P. 910; Coon v Sommercamp, 26 Idaho 776, 146 P. 728.)

2. Under the provisions of sec. 2792, Rev. Codes, a foreign corporation, prior to filing its articles of incorporation and designating its agent as provided by said section, cannot sue upon or enforce in any court in this state any contract or agreement made in the name or for the benefit of such corporation.

[As to citizenship and residence of foreign corporation for jurisdictional purposes, see note in 85 Am.St. 906.]

3. Held, that the evidence shows that the plaintiff corporation had complied with the provisions of said statute prior to the time of procuring title to the mining claims involved in this action, and that this action is not an action upon a contract, but is an action to quiet title to property acquired by the plaintiff at a time when it had fully complied with the provisions of said section.

4. A foreign corporation may sue in the courts of this state to protect its title and right of possession to real estate as against a private party who trespasses thereon or seeks or attempts to appropriate the same to his own use or benefit.

5. Evidence held sufficient to support the finding of facts.

APPEAL from the District Court of the Second Judicial District for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to quiet title to certain mining claims and water rights. Judgment for the plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to the respondents.

A. A Holsclaw, for Appellants.

The court below erred in making and entering judgment quieting title to said premises in plaintiff, the record clearly showing that plaintiff was a foreign corporation and had not complied with the laws of the state of Idaho governing foreign corporations, and had no legal status or standing in the courts of the state of Idaho at the time suit was instituted. (Katz v. Herrick, 12 Idaho 1, 86 P 873.)

There is no equity in the bill. Before plaintiff can be heard to ask that the title be quieted, it must tender payment of the several mortgage and judgment liens existing against the property, and it is no excuse to plead that the liens may have become barred by the statute of limitations. (2 Am. & Eng. Ency. of Law, 310; Briggs v. Johnson, 71 Me. 235; Boeck v. Merriam, 10 Neb. 199, 4 N.W. 962; Crumb v. Davis, 54 Iowa 25, 6 N.W. 53; Barnett v. Cline, 60 Ill. 205; Reed v. Tyler, 56 Ill. 288; Cartwright v. McFadden, 24 Kan. 662; Partee v. Mathews, 53 Miss. 140, 141; Gibson v. Johnson, 73 Kan. 261, 84 P. 982; Tracy v. Wheeler, 15 N.D. 248, 107 N.W. 68, 6 L. R. A., N. S., 516.)

G. W. Tannahill, for Respondent.

The transcript was not prepared within the time provided by law therefor, and was not served and filed within the time provided by law or the rules of this court. More than forty days elapsed between the date of the service of the notice of appeal and of the filing of the same and the date of the service of the stenographer's transcript. (Edwards v. Anderson, 23 Idaho 508, 130 P. 1001; Strand v. Crooked River Min. & Mill. Co., 23 Idaho 577, 131 P. 5.)

"Where the cause of action involved the protection of the title and possession of real property acquired at a time when the corporation had in all respects complied with the then existing law, and the defendant pleads as a defense that the plaintiff has failed and neglected to comply with the constitution and subsequent laws of this state in appointing a statutory agent, and filing copies of its charter or articles of incorporation, such defendant is not in a position to maintain the defense of noncompliance with the statute on the part of the plaintiff." (War Eagle Con. Min. Co. v. Dickie, 14 Idaho 534, 94 P. 1034; Reynolds v. Crawfordsville etc. Bank, 112 U.S. 405, 412, 5 S.Ct. 213, 28 L.Ed. 733, 736; Smith v. Sheely, 12 Wall. (U.S.) 361, 20 L.Ed. 430; Hickory Farm Oil Co. v. Buffalo etc. R. Co., 32 F. 22; Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N.W. 873; Myers v. McGavock, 39 Neb. 843, 42 Am. St. 627, 58 N.W. 522; Davis v. Old Colony R. Co., 131 Mass. 258, 41 Am. Rep. 221; Galveston etc. Imp. Co. v. Perkins (Tex. Civ.), 26 S.W. 256, 258; Ragan v. McElroy, 98 Mo. 349, 352, 11 S.W. 735; Whitman Gold & S. Min. Co. v. Baker, 3 Nev. 386.)

Respondent in this case is not seeking to enforce a contract; it never had any contractual relations with appellants. It is merely attempting to prevent the confiscation of property already acquired and eject trespassers therefrom. (Powder River Cattle Co. v. Commissioners of Custer County, 9 Mont. 145, 154, 22 P. 384; Fisk v. Patton, 7 Utah 399, 27 P. 1, 3; Pfeuffer v. Maltby, 54 Tex. 454, 38 Am. Rep. 631; Clements v. Yturria, 81 N.Y. 285; United States Express Co. v. Lucas, 36 Ind. 361.)

The provisions of the act respecting foreign corporations and their agents in this state are applicable only to actions brought for the enforcement of contracts, and have no applicability whatever to actions, such as this, brought by a foreign corporation to recover the possession of its property. (Smith v. Little, 67 Ind. 549, 556; American Type Founders Co. v. Conner, 26 N.Y.S. 742, 6 Misc. 391; Wright v. Douglass, 10 Barb. (N. Y.) 97, 106.)

SULLIVAN, C. J. Budge, J., concurs. Morgan, J., did not sit at the hearing of this case and took no part in its decision.

OPINION

SULLIVAN, C. J.

The Junction Placer Mining Company brought this action for the purpose of quieting its title to certain placer mining claims situated in sec. 27, tp. 38 N. of Range 4 E., B. M., and to quiet its title to certain water rights connected with said placer mining claims. The action was originally brought against M. O. Reed and others, but subsequently M. O. Reed and others transferred all of their interests to the Clearwater Mining Company, a corporation, and thereafter it was made a defendant and the action was prosecuted against the Clearwater Mining Company and others. Said M. O. Reed died subsequent to the institution of the action and his administratrix and heirs were made parties by supplemental complaint. The issues before this court are between the respondent, the Junction Placer Mining Company and the appellants, the Clearwater Mining Company and G. A. Henkel. The defendants, the Western Land Company and the Clearwater Timber Company, did not appeal from the judgment of the trial court.

The Clearwater Mining Company answered denying the material allegations of the complaint and claimed title to certain of said mining claims by reason of the location thereof. The answer also contained an affirmative allegation to the effect that the plaintiff corporation had failed to comply with the laws of the state, and therefore had no legal capacity to bring and maintain this action, and as a further defense alleged an abandonment of said claims by the plaintiff corporation and uninterrupted possession of said mining claims and property since the first day of September, 1912, and that since the 31st of March, 1910, the defendant Henkel and his wife had been the absolute and unqualified owners of the entire capital stock of the plaintiff corporation.

The defendant Henkel filed a separate answer in which he denied that the mortgages set out in the complaint were paid, and alleged that he was the owner of said mortgages and of a judgment amounting to $ 1,114.16, which is a lien against said mining claims and property, and also alleged that he is the owner of another mortgage given to secure $ 225, and that said debt remained unpaid and in full force, and prayed that the complaint and supplemental cross-complaint of the plaintiff be dismissed and that all of the rights of the several defendants as set forth in the answer in the affirmative defenses be decreed to be superior to any claim of the said plaintiff, and for such other and further relief as was just and equitable in the premises.

Defendants M. O. Reed, Frank K. Bernard, John Groves, William Bush and Minnie F. Walker answered denying the material allegations of the complaint and set up defenses similar to those set up in the answer of said Clearwater Mining Co., and prayed that all of the rights of said answering defendants as set forth in their affirmative answer be decreed to be superior to any claim of the plaintiff.

Upon the issues thus made the cause was tried before the court without a jury, and finding of facts, conclusions of law and decree and judgment were entered in favor of the plaintiff, substantially quieting the title to said mining claims, water rights and property in the plaintiff corporation.

We are met at the beginning with motions to strike the transcript from the files and to dismiss the appeal, on the ground that the transcript was not prepared within the time provided by law and the rules of the court. Both motions are based on the same ground, to wit, that more than forty days elapsed between the date of the service of the notice of appeal and the filing of the transcript and the service of the stenographer's transcript.

Upon the authority of Fischer v. Davis, 24 Idaho 216, 133 P. 910, both motions are denied. Also,...