Kelley v. R. J. Schwab & Sons Co.

• Decision Date: 18 November 1908
• Court: South Dakota Supreme Court
• Parties: KELLEY et al. v. R. J. SCHWAB & SONS CO. et al.

22 S.D. 406

118 N.W. 696

KELLEY et al.

v.R. J. SCHWAB & SONS CO. et al.

Supreme Court of South Dakota.

Nov. 18, 1908.

Appeal from Circuit Court, Beadle County.

Action by Charles A. Kelley and others against the R. J. Schwab & Sons Company and others. From a judgment for defendants and from an order denying complainants' motion for a new trial, they appeal. Affirmed.W. A. Lynch, C. A. Kelley, and James Byrnes, for appellants.

H. S. Mouser, for respondents.

CORSON, J.

This action was instituted to restrain and enjoin the collection of a certain judgment obtained by the respondent R. J. Schwab & Sons Company, a corporation, in an action in the circuit court of Beadle county wherein the said corporation was plaintiff and the appellants were defendants, and to have said judgment decreed void and cancelled and expunged from the records of the circuit court. Findings and judgment being in favor of defendants, the plaintiffs have appealed.

The complaint, in substance, states that the respondent the R. J. Schwab & Sons Company is a corporation existing under and by virtue of the laws of the state of Wisconsin; that on or about the 17th day of March, 1905, the said respondent company at the city of Huron, S. D., entered into a certain agreement with the appellants, whereby the appellants promised and agreed to pay to the said respondent corporation on or before the 15th day of June, 1905, the sum of $540, with interest thereon at the rate of 6 per cent. per annum from the date of said contract, and that the said contract was duly signed by the appellants, and was made and delivered to the respondent corporation at said city of Huron, in said state; that on the 22d day of July said respondent company instituted a suit against these appellants in the above-named court to recover the said sum; that on the 20th day of January, 1906, the said respondent company recovered a judgment in said action against the appellants herein for the sum so claimed to be due; that said respondent company caused an execution to be issued out of said court on said judgment and to be placed in the hands of said respondent Charles E. Young, as sheriff of Beadle county with directions to said sheriff to execute the same on any property owned by these appellants or either of them in said county of Beadle, and that the said sheriff threatens to proceed under said execution and levy upon the property of these appellants; that the respondent is a foreign corporation, and has no existence in the state of South Dakota, and that said respondent company has never at any time complied with the laws of this state by filing its articles of incorporation with the Secretary of State, and appointing an agent therein, as required by the statutes of this state; and that, by reason of the premises, appellants allege that at the time said contract described in this complaint was executed said respondent company was not authorized to transact any business, acquire, hold, or dispose of any property, or make or enter into any contract whatever in this state, and that the contract hereinbefore referred to became, and was, and is, unlawful and utterly void.

The respondent corporation in its answer pleaded that in the action described in plaintiff's complaint the parties defendant in that action are the parties plaintiff herein, and that the present defendant company was the plaintiff in that action, and is the real defendant in this action; that said action was tried upon its merits by the court, all parties to the action appearing therein; that the matters sought to be set up in plaintiffs' complaint in this action were set up and adjudicated in said original action in which said judgment was obtained; that in said original action in which said judgment was obtained the plaintiffs...