Missouri Coal & Mining Co. v. Ladd

• Decision Date: 26 February 1901
• Citation: 160 Mo. 435,61 S.W. 191
• Court: Missouri Supreme Court
• Parties: MISSOURI COAL & MINING CO. v. LADD et al.

61 S.W. 191

160 Mo. 435

MISSOURI COAL & MINING CO. v. LADD et al.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

FOREIGN CORPORATIONS—COMPLIANCE WITH STATUTES—RIGHT TO SUE—DOING BUSINESS IN STATE — APPEAL — QUESTIONS CONSIDERED.

1. Where a bill of exceptions does not show the presentation and denial of a motion in arrest of judgment, the action of the court in overruling the motion will not be considered on appeal.

2. Where a demurrer to the evidence, on the ground that it shows that the plaintiff, a foreign corporation, has transacted business as a corporation without compliance with Act April 21, 1891, requiring foreign corporations to have a public office in the state, file their charters, and pay certain taxes, and hence that it is not entitled to sue, is overruled on the ground that the corporation has not been transacting business as a corporation, and no objection is taken thereto, the determination that the corporation was not transacting such business will not be reviewed on appeal.

3. Act April 21, 1891, requires foreign corporations doing business in the state to maintain a public office, and to file their articles with the secretary of state, and pay certain taxes and fees therein. A foreign corporation, organized for the purpose of mining and selling coal and manufacturing coke, had ceased its mining and manufacturing operations before the passage of the act. Held, that the fact that the company owned and rented its coal lands for agricultural purposes was not the transaction of business, within the meaning of the act, which would deprive the corporation, which had not complied with the act, from its right to sue in the state.

4. Where it is contended that an unauthorized item of damages for attorney's fees, which has not been paid, is included in the judgment, but no such question is presented in the instruction, and the judgment is for a gross amount in excess of such amount, and less than plaintiff's claim, the judgment will not be reversed, since it cannot be determined whether such sum was included therein, and the question should have been presented by the instruction.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action on an attachment bond by the Missouri Coal & Mining Company against William M. Ladd and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Upton M. Young, for appellants. John H. Overall and R. H. Norton, for respondent.

BURGESS, J.

This is an action upon an attachment bond executed by defendants to plaintiff in a suit in the circuit court of the United States for the Eastern division of the Eastern district of Missouri, wherein the defendant Ladd was plaintiff, and the plaintiff in this suit was defendant. The penal sum in the bond was $69,500, and its conditions as follows: "That whereas, William M. Ladd is about to institute a suit in the circuit court of the United States for the Eastern division of the Eastern judicial district of Missouri by attachment against Missouri Coal and Mining Company, defendant, for the sum of $34,675.00: Now, if said plaintiff shall prosecute his action without delay, with effect, refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiff and not justly due him, and pay all damages that may accrue to any defendant or garnishee by reason of the judgment, or any process or proceeding in the suit, or by reason of any judgment or process herein, then this obligation to be void; otherwise, to remain in full force." The breaches of the bond assigned in the petition are the failure by Ladd to sustain his action and the abatement of the attachment. The petition then alleges that plaintiff was damaged in the sum of $5,000 by reason of the levy of the attachment upon its property, and the further sum of $5,500 which it was compelled to and did lay out and expend in and about the defense of said alleged action and attachment for attorney's fees, and other necessary costs and expenses, to wit:

                Sedden & Blair, attorneys, St. Louis    $3,243 10
                McLaughlin & Rowe, attorneys..........   1,683 36
                Geo. T. Murdock, witness, expenses
                 to St. Louis.........................      86 50
                Expenses of officers of company in
                 attendance at trial and in management
                 of case..............................     487 04
                                                        _________
                                                        $5,500 00
                

To plaintiff's petition defendants filed answer, denying all allegations therein, and, by way of affirmative defense, alleging that plaintiff has no authority in law to maintain its action, because it is a foreign corporation, and has not complied with the act of the general assembly of this state entitled an "Act to require every foreign corporation doing business in this state to have a public office or place at which to transact its...