McCoy v. Farmer

• Decision Date: 30 April 1877
• Citation: 65 Mo. 244
• Parties: MCCOY ET AL. v. FARMER ET AL., PLAINTIFFS IN ERROR.
• Court: Missouri Supreme Court

65 Mo. 244

MCCOY ET AL.

v.FARMER ET AL., PLAINTIFFS IN ERROR.

Supreme Court of Missouri.

April Term, 1877.

Error to Cass Circuit Court.--HON. F. P. WRIGHT, Judge.

Defendant's motion to dismiss the suit referred to in the opinion of the court, assigned the following grounds, viz: 1st. That plaintiff's charter expired by limitation on the 22nd day of February, 1873, and plaintiff cannot now further prosecute in said action. 2nd. That by reason of the expiration of plaintiff's charter plaintiff has no existence and cannot maintain the action. 3rd. That upon the dissolution of plaintiff as a corporation, by reason of the expiration of its charter, the demand sued upon became extinct.

Hall & Given for plaintiff in error.

I. Upon the expiration of its charter the corporation was fully and completely dissolved, and no steps had been previously thereto taken by creditors, or other persons, to wind up its affairs by having a receiver appointed, or otherwise. It is well settled that upon the dissolution of a corporation the debts due to and from it are totally extinguished, unless that result has been averted by some provision in the charter or by the operation of some statute, general or special, which was not the case here. Angel & Ames, Corp., 7th Ed., Sec. 779; Miami Exporting Co. v. Gana, 13 Ohio 269; Renick v. Bank of West Union, Ib. 298; Conwell v. Pattison, 28 Ind. 509. All suits then pending for it must therefore abate. Ang. & Ames Corp. p. 162. Lindell v. Benton, 6 Mo. 361 is not in conflict with this view. Besides, the company had transacted no business for near ten years before the commencement of this suit, had laid dormant, had exercised none of its functions or rights as a corporation for that period of time, had in fact ceased to exist long before the expiration of its charter. Even an act of the Legislature renewing a charter, passed after the corporation had been dissolved by expiration of its charter term of existence, will not revive its debts. Ang. & Ames on Corp., 7th Ed., p. 163, Sec. 196. Comm. Bank v. Lockwood, 2 Harring. (Del.) 8; Foster v. Essex Bank, 16 Mass. 245.

II. The court below erred in permitting the suit to be revived in the name of McCoy et al. as trustees. At the date of the expiration of the charter they were not directors thereof. It is admitted by them that no election for directors had been held after the first Monday in April, 1861, near twelve years before the charter expired, and that but two meetings of this alleged board had ever been held, the first of which was in 1869. By the charter the directors were to hold only during the “ensuing year” after their election. They had therefore no power to hold over. St. Louis v. Russell, 9 Mo. 507; Blair v. Perpetual Ins. Co., 10 Mo. 559; Han. & St. Joe R. R. Co. v. Marion Co., 36 Mo. 294; Bank of Louisville v. Young, 37 Mo. 398; Ruggles v. Collier, 43 Mo. 353; Mathews v. Skinker, 62 Mo. 329; Ohio Ins. Co. v. Nunnemacher, 15 Ind. 294; Bank of U. S. v. Dandridge, 12 Wheat. 64; Head v. Providence Ins. Co., 2 Cranch 127.

III. The motion to dismiss going to the then plaintiff's right to further maintain its suit, and the action of the court thereon having been preserved in the bill of exceptions, it occupied the same footing as a demurrer and was a part of the record proper and no part of the proceedings at trial, a matter of error and not of exception, and there was no manner of necessity for referring to it in the motion for a new trial. Jones v. Manly, 58 Mo. 559; Peltz v. Eichele, 62 Mo. 171; Bateson v. Clark, 37 Mo. 31; State v. Matson, 38 Mo. 489.

IV. The note was barred by the statute of limitations. Presbrey v. Williams, 15 Mass. 193; Jacobs v. Graham, 1 Blackf. 392; Ryman v. Clark, 4 Blackf. 329; Little v. Blunt, 9 Pick. 491; Arnold v. U. S., 9 Cranch 104.

A. Comingo & R. O. Boggess for defendants in error.

NORTON, J.

This suit was brought in the Circuit Court of Cass county by the Independence Fire and Marine Mutual Insurance Company on a note executed to it by defendants, due four months after date, and dated January 1st, 1861, for $96.73-100. This suit was instituted on the first day of May, 1871. The defendants appeared to the action, and filed their answer, subsequently to which time, in November, 1873, the charter of the said company, by the terms of the act creating it, expired, at which time the present plaintiffs filed their petition in said court, praying that the suit be revived, and that they, being the last board of directors, should be permitted to prosecute the same as trustees for the benefit of those interested. The prayer of this petition was granted, the suit revived, and plaintiffs were allowed to prosecute the same, against the objection of defendants. The defendants answered the petition, denying the existence of said corporation, or that said plaintiffs were the directors of the corporation at the time of its dissolution, or had ever been such directors. They admit the execution of the note, but deny that there was anything due on it, and allege that they were only to pay said note when it should be necessary to meet losses, and that no losses had occurred. The right of plaintiffs to prosecute the suit as trustees is denied, and the statute of limitations is set up as a bar. The replication of plaintiffs denies all the allegations of the answer. On the trial plaintiffs obtained judgment for the amount of the note and interest, and defendants, having made an ineffectual motion for a new trial, bring the cause here by writ of error.

1. REVIEWABLE ERRORS: Motion for new trial.

The only error complained of in the motion for new trial was as to the action of the court in giving the instructions asked by the plaintiffs and refusing those asked by the defendants. We will not, therefor, consider the action of the court in overruling defendants' motion to dismiss the suit, nor its action in reviving the suit and permitting plaintiffs to prosecute the same, neither of these causes being incorporated in the motion for a new trial. If they were intended to be relied upon here, they should have been so incorporated. It was due to the court below that its attention should have been thus called to all the matters complained of, and which would be relied upon as ground of reversal. This has been repeatedly held to be necessary by this court. Acock v. Acock, 57 Mo. 155; Lancaster v. Washington Life Ins. Co.,62 Mo. 121; Curtis v. Curtis, 54 Mo. 352; Brady v. Connelly, 52 Mo. 19.

The instructions given on behalf of plaintiffs, are as follow:

1. That defendants have introduced no evidence that shows a legal defense against the note sued on, and the jury are instructed to find for plaintiffs.

2. If the note was executed on the first day of January, 1861, and was made payable four months after date, and this suit was institued on the first day of May, 1871, then defendants cannot avail themselves of the defense of the statute of limitations, and there is no evidence to the contrary.

The following instructions asked by defendants were refused:

1. If the jury find from the evidence that the note in controversy was signed and delivered by defendants, with the understanding and agreement that the note was only to be collected for the payment of losses sustained thereafter by the...