King Copper Co. v. Dreher

• Decision Date: 06 July 1920
• Docket Number: 9842.
• Citation: King Copper Co. v. Dreher, 68 Colo. 554, 191 P. 98 (Colo. 1920)
• Parties: KING COPPER CO. et al. v. DREHER.
• Court: Colorado Supreme Court

191 P. 98

68 Colo. 554

KING COPPER CO. et al. v. DREHER.

No. 9842.

Supreme Court of Colorado

July 6, 1920

Department 3.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Suit by the King Copper Company and another against W. F. Dreher. Judgment of dismissal, and plaintiffs bring error and apply for a supersedeas.

Application for supersedeas denied, and judgment affirmed.

Henry Howard, Jr., of Denver, for plaintiffs in error.

A. E McGlashan, of Trinidad, for defendant in error.

ALLEN J.

This is a suit in mandamus brought by the King Copper Company, an Arizona corporation, and C. E. Welch, as its general manager secretary and treasurer, against W. F. Dreher, who is alleged to have been such officer of the corporation, and a writ is sought to compel the respondent to deliver to the petitioners, or either of them, certain books and papers.

The court below sustained a motion of the respondent for judgment on the pleadings, and the cause was dismissed. The petitioners have sued out this writ of error and have applied for a supersedeas.

The principal question presented by the record, and the only one necessary to be considered upon this review, relates to the right of the petitioners to maintain this suit. It is admitted in the pleadings that the King Copper Company is a foreign corporation, and has never complied with the laws of Colorado, entitling it to do business in this state, and that it has never paid the fees, charges, and taxes prescribed and provided by the law of the state of Colorado to be paid to the secretary of state. The respondent therefore contends that the petitioners are, by section 904, R. S. 1908, barred from prosecuting this action.

Section 904, R. S. 1908 (section 1044, M. A. S. 1912; S. L. 1911, p. 255) after prescribing what fee shall be paid 'to the secretary of state, for the use of the state' by every foreign corporation, provides, among other things, that----

'No such corporation * * * shall * * * be permitted to * * * prosecute or defend in any suit in this state until the said fee shall have been paid.'

The petitioners contend that this statute cannot be invoked by the respondent for the reason that he is sued as an officer or agent of the corporation, and therefore estopped to plead the statute as a defense. We cannot sustain this contention, but must hold that the statute is applicable, and bars the petitioners from prosecuting this suit. In Watson v. Empire Cream Separator Co., 180 Pac. 685, it was said that until a foreign corporation complies with the law 'it has no capacity to sue.' In Western Electric Co. v. Pickett, 51 Colo. 415, 422, 118 P. 988, 38 L.R.A. (N. S.) 702, Ann.Cas. 1913A, 132, this court said that----

'The most efficient way to compel obedience to this statute is to enforce it as it reads, and not amend it by judicial construction.'

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