Milwaukee Gold Extraction Co. v. Gordon

• Decision Date: 18 May 1908
• Citation: 95 P. 995,37 Mont. 209
• Parties: MILWAUKEE GOLD EXTRACTION CO. v. GORDON et al.
• Court: Montana Supreme Court

95 P. 995

37 Mont. 209

MILWAUKEE GOLD EXTRACTION CO. v. GORDON et al.

Supreme Court of Montana

May 18, 1908

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by the Milwaukee Gold Extraction Company against George W Gordon and another. From a judgment for defendants and an order denying a new trial, plaintiff appeals. Affirmed.

D. M Durfee and W. E. Moore, for appellant.

Wingfield L. Brown and Rodgers & Rodgers, for respondents.

HOLLOWAY J.

This is an adverse suit, instituted by the Milwaukee Gold Extraction Company, a corporation, owning the Hannah, Alice, and Dixie quartz lode mining claims, all situate in Granite county, against the defendants Gordon and Doddington, the owners of the Maude S. claim. It is alleged in the complaint that the defendants made application for patent to their claim, and during the period of publication of their notice plaintiff filed in the local land office its protest and adverse claim, alleging a conflict between the surface area of defendants' claim and the surface areas of the claims owned by the plaintiff. It is alleged that this adverse was allowed, and that within 30 days thereafter this action was commenced. The defendants answered, admitting the making of their application for patent, and undertook to deny every other allegation in the complaint. They also set forth affirmatively the acts and things done by them in making and perfecting their location of the Maude S. claim and in representing the same. A reply was filed which puts in issue the affirmative allegations in the answer, and also pleads a forfeiture by defendants of any right which they may have had by virtue of the location of the Maude S. claim. Upon the trial the court excluded all testimony offered by the plaintiff, heard the evidence offered by the defendants respecting their claim, and made and had entered a judgment in their favor, from which judgment and an order denying it a new trial the plaintiff appeals.

Many specifications of alleged error are made by the appellant, but these may be grouped, as they present but few questions for determination. In paragraph 1 of the complaint it is alleged "that the plaintiff is a corporation duly organized under the laws of the territory of Arizona," etc. Paragraph 1 of the answer and the introductory clause read as follows: "Come now the defendants, and answering the plaintiff's complaint filed herein, say: (1) That the defendants have not sufficient knowledge or information to form a belief as to the matters and facts set out in paragraph No. 1 of the said complaint, and therefore deny the same." Appellant contends that this statement in paragraph 1 of the answer is not sufficient to put the plaintiff upon proof of the fact that it was and is a corporation. Section 690 of the Code of Civil Procedure for 1895, among other things, provides: "The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. ***" It is said that, as defendants did not follow the language of the Code, they did not raise an issue upon the allegation in the first paragraph of the complaint. But we are not impressed with the argument; for, while the Code in section 690 above apparently contemplates that this assertion of a want of knowledge shall be in the form of a denial, we think the defendants complied substantially with the law in saying that they "have not sufficient knowledge or information to form a belief as to the matters and facts alleged in paragraph 1 of the complaint." In other words, we are unable to appreciate any difference in these two expressions: (1) I say that I have not sufficient knowledge or information to form a belief as to a particular allegation; and (2) I deny that I have any knowledge or information sufficient to form a belief as to a particular allegation. The Supreme Court of California, in Hill v. Smith, 27 Cal. 476, has held that two such expressions are identical in their meaning. Section 755 of the same Code seems to authorize, or at least to countenance, the form of denial adopted by the defendants. That section provides: "An allegation that the party has not sufficient knowledge or information to form a belief, with respect to a matter, must, for all purposes, including a criminal prosecution, be regarded as an allegation that the person verifying the pleading has not such knowledge or information." In order to give the plaintiff any standing in court it was necessary, since it was not a private person, to allege the character in which it appeared. The allegation that it was and is a corporation was a necessary one, and it certainly cannot be said that such an allegation in the complaint cannot be put in issue by a denial in the answer. In the case of Martin v. Deetz, 102 Cal. 55, 36 P. 368, 41 Am. St. Rep. 151, the following from Oroville & V. R. R. Co. v. Plumas County, 37 Cal. 360, is quoted with approval: "This provision (section 358, Cal. Civ. Code) does not go to the extent of precluding a private person from denying the existence de jure or de facto of an alleged corporation. It cannot be true that the mere allegation that a party is a corporation puts the question whether it is such a corporation beyond the reach of inquiry in a suit with a private person. It must be a corporation either de jure or de facto, or it has no legal capacity to sue or be sued, nor any capacity of any kind. It is an indispensable allegation in an action by a corporation that the plaintiff is a corporation; and it results from the logic of pleading that the opposite party may deny the allegation." The provisions of our Code above, authorizing a denial of knowledge or information sufficient to form a belief, are applicable to any or every allegation in a complaint. That form of denial will raise an issue as to the corporate existence of a plaintiff as well as to any other fact pleaded in the complaint. The doctrine announced in 2 Beach on Corporations, § 869, and 5 Ency. Pleading & Practice, 87, cannot be applicable to such provisions of law as we have in section 690 above. That section does not authorize us to make an exception in favor of an allegation that the plaintiff is a corporation.

It is alleged that the plaintiff is a corporation organized under the laws of Arizona, and plaintiff undertook to prove this fact, and to that end introduced in evidence what it denominated a certified copy of the articles of incorporation of the company. From the paper offered it appears that the original articles of incorporation were filed in the office of the county recorder of Maricopa county, Ariz.; that the county recorder made a certified copy thereof, which was filed in the office of the Secretary of the territory; that the Secretary of the territory made a certified copy of the copy which he had on file in his office and transmitted it to the Secretary of State of the state of Montana, who filed the same in his office; and that finally the Secretary of State of Montana furnished the plaintiff a certified copy of the copy in his office, and that this was the paper offered in evidence. The body of the paper, which is in form the articles of incorporation of the Milwaukee Gold Extraction Company, has attached to it a certificate of the county recorder of Maricopa county to the effect that the same is a full, true, and correct copy of the original and the whole thereof. This is followed by the endorsement: "Filed in the office of the Secretary of the territory of Arizona this 25th day of February, A. D. 1901, at 3 p. m. C. H. Akers, Secretary of Arizona." This is followed by a certificate of the Secretary of Arizona to the effect that it is a true and complete transcript of the articles of incorporation of the Milwaukee Gold Extraction Company, which was filed in his office on the 25th day of February, A. D. 1901, at 3 o'clock p. m. This is followed by the indorsement: "Filed December 13, 1902, at 1 o'clock p. m. Geo. M. Hays, Secretary of State of Montana." And then follows the certificate of the Secretary of State of Montana to the effect that the paper is a correct transcript from the original on file in his office and of the whole of said original. Objection was made to the introduction of this paper upon the ground that it was not properly authenticated, and the objection was sustained. This ruling of the trial court presents one of the principal grounds of error relied upon.

Section 1, art. 4, of the Constitution of the United States provides "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof." Conformably with this provision, the Congress in 1804 enacted what is now section 906, Rev. St. U.S. (U. S. Comp. St. 1901, p. 677), a part of which section is as follows: "All records and exemplifications of books which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory or in any such country by the attestation of the keeper of said records or books and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the Governor or Secretary of State, the chancellor or keeper of the great seal of the state or territory or country that the said attestation is in due form, and...