Morris-Roberts Company v. Mariner

• Decision Date: 08 May 1913
• Citation: Morris-Roberts Company v. Mariner, 135 P. 1166, 24 Idaho 788 (Idaho 1913)
• Parties: MORRIS-ROBERTS COMPANY, a Corporation, Respondent, v. ADA M. MARINER and BLISS TOWNSITE COMPANY, a Corporation, Appellants, and CHARLES B. AMOS, Intervenor and Appellant
• Court: Idaho Supreme Court

135 P. 1166

24 Idaho 788

MORRIS-ROBERTS COMPANY, a Corporation, Respondent, v. ADA M. MARINER and BLISS TOWNSITE COMPANY, a Corporation, Appellants, and CHARLES B. AMOS, Intervenor and Appellant

Supreme Court of Idaho

May 8, 1913

APPEAL-SEPARATE APPEALS-DUTY OF EACH APPELLANT-PROCURING A TRANSCRIPT-FOREIGN CORPORATION-RIGHT TO DO BUSINESS IN THE STATE-COMPLIANCE WITH LAW.

1. Sec 4434, Rev. Codes, as amended, Laws of 1911, p. 379, provides that any party desiring to procure a review on appeal of any ruling of the district court or the sufficiency of the evidence to support the verdict or decision, shall procure a transcript of the testimony and proceedings including the instructions, etc., that such party shall procure from the district judge an order directing the reporter to prepare a transcript, and he shall then file the order with the clerk of the court and serve a copy thereof upon the reporter paying to him at the time such sum as he shall demand as the estimated cost of transcribing such part of his notes and other proceedings as may be desired, at the rate of ten cents per folio of one hundred words.

2. It was not intended by the amendment of sec. 4434, Rev. Codes that where separate appeals are taken by different parties to the action, and one of the parties secures a transcript of the reporter's notes as provided by the statute, and pays for the entire transcript, and the other appellants refuse to secure such transcript, that such appellants can take advantage of the records secured and paid for by the single appellant, neither can such appellants base their appeals upon said transcript which was not secured by them as provided by sec. 4434, Rev. Codes.

3. Sec 2792 of the Rev. Codes requires that "every corporation not created under the laws of this state must, before doing business in this state, file with the county recorder of the county in this state in which is designated its principal place of business in this state, a copy of the articles of incorporation of said corporation, duly certified to by the secretary of state of the state in which said corporation was organized, and a copy of such articles of incorporation duly certified by such county recorder, with the secretary of state Such corporation must also within three months from the time of commencement to do business in this state, designate some person in the county in which the principal place of business of such corporation in the state is conducted, upon whom process issued by authority of or under any law of this state may be served No contract or agreement made in the name of, or for the use or benefit of, such corporation prior to the making of such filings as first herein provided, can be sued upon or enforced in any court of this state by such corporation."

4. Sec. 2792, Rev. Codes, is mandatory, and must be substantially complied with in order to enable a foreign corporation to maintain an action in the courts of this state for the enforcement of contracts.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

An action to establish a trust in certain real property. Reversed.

Judgment reversed. Costs awarded to appellants.

V. O. Johnson and Paul S. Haddock, for Appellants.

No copy of the articles of incorporation of this corporation certified to by the Secretary of State of Wyoming was filed with the recorder of Lincoln county, Idaho, until June 26, 1911, nor with the Secretary of State of Idaho until July 3, 1911, both of which were more than two years after the transactions in this cause had been had and several months after the present action was filed.

This case is an action by a foreign corporation to enforce a contract or agreement made for its use and benefit within the terms of our statute. Indeed, this court so regarded a similar action to quiet title and to establish by decree a trust in real estate in a recent case. (Pennsylvania & Coeur d'Alene M. Co. v. Gallagher, 19 Idaho 101, 112 P. 1044.)

This court has passed upon the propositions involved in a recent case which deals not only with the problem of estoppel, but likewise with several other phases of the subject. (Tarr v. Western Loan & Savings Co., 15 Idaho 741, 99 P. 1049, 21 L. R. A., N. S., 707.)

It has likewise been determined that a subsequent compliance with the statute cannot be of service to the corporation, and the filings of June 26, 1911, are immaterial. (Valley Lumber & Mfg. Co. v. Driessel, 13 Idaho 673, 93 P. 765, 15 L. R. A., N. S., 299, 13 Ann. Cas. 63.)

The intervenor did not take the steps required by law to perfect his appeal. In particular he never obtained and filed any order for the reporter's transcript. (Chap. 119, Laws of 1911.)

The intervenor, after ordering the clerk's transcript, canceled his order and thereby abandoned his appeal. Any step or proceeding taken by an appellant inconsistent with an intent to prosecute the appeal is an abandonment. (3 Cyc. 201.)

The penalties of sec. 2792 are directed against the noncomplying foreign corporation and not against other parties dealing with it. (Katz v. Herrick, 12 Idaho 1, 86 P. 873; Keating v. Keating Min. Co., 18 Idaho 660, 112 P. 206.)

Richards & Haga and McKeen F. Morrow, for Intervenor and Appellant, Chas. B. Amos.

Respondent did not substantially comply with the Idaho statute as to foreign corporations until July 3, 1911, and, this statute being mandatory, a substantial compliance is necessary in order to enable respondent to acquire real property in this state. (Rev. Codes, sec. 2792; Katz v. Herrick, 12 Idaho 1, 33, 86 P. 873; Valley Lbr. Co. v. Driessel, 13 Idaho 662, 679, 93 P. 765, 15 L. R. A., N. S., 299, 13 Ann. Cas. 63; Tarr v. Western Loan & Sav. Co., 15 Idaho 741, 99 P. 1049, 21 L. R. A., N. S., 707.)

This court has held that contracts of a noncomplying foreign corporation are unlawful and void, provided the other party takes advantage of the noncompliance by demurrer or answer. (Katz v. Herrick, supra; Valley Lbr. Co. v. Driessel, supra.)

The appeal of intervenor should be dismissed. The object of the amendments to the appellate practice of this state was to prescribe a speedy and economical method of preparing a case and presenting the same to the supreme court. This object would certainly not be attained if a party, whose pleadings and proof occupied but a very small fraction of the record, should be required to go to the delay and expense of procuring an entire separate transcript. (Kelley v. Clark, 21 Idaho 231, 121 P. 95.)

J. R. Bothwell, for Respondent.

The plaintiff relied on the filings made, as being a substantial compliance with the statute relating to foreign corporations, and the court made no findings or conclusions on that subject.

The appellants, instead of insisting on a finding and conclusions of law respecting the plaintiff's incapacity to sue, or in assigning error for the court's failure to do so, merely interpose the motion for nonsuit, relying on the insufficiency of the evidence to show such incapacity or in showing a lack of substantial compliance with the statute. This motion was overruled. The records show that the appellants, subsequent to the overruling of said nonsuit motion, introduced testimony in their defense, but did not at any time thereafter renew the motion. For this reason no error can be predicated on the ruling of the court denying the nonsuit motion. (Chamberlain v. Woodin, 2 Idaho 609 (642), 23 P. 177; Shields v. Johnson, 12 Idaho 329, 85 P. 972.)

The appellate court will not assume that the court below made an erroneous finding or conclusion as to a given point, when the record fails to show any finding at all by the court on that point. (Medbury v. Maloney, 12 Idaho 634, 88 P. 81.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This action was instituted by the respondent, Morris-Roberts Company, a corporation organized under the laws of the state of Wyoming, having its principal place of business at Bliss, Lincoln county, Idaho, against the defendants, A. M. Mariner, Frank S. Rayburn and the Bliss Townsite Company, a corporation organized under the laws of the state of Idaho. The purpose of the action was to establish a trust in a portion of the premises involved, consisting of about three acres of ground, and for general equitable relief. The defendant Rayburn was never served and made no appearance. Charles B. Amos, one of the appellants, by leave of court filed a complaint in intervention, and alleged he was the owner of the east half of the southeast quarter of section 6, township 6 south, range 13 east, B. M., with the exception of an acre on which the schoolhouse was located, and the Oregon Short Line right of way; that the eighty acre tract described is the townsite of Bliss, and includes the three acre tract claimed by respondent, as well as the balance of the tract claimed by appellant Bliss Townsite Company, and in the cross-complaint prays that his title be quieted in said land. Answers were filed to the complaint in intervention, denying the intervenor's title, and the appellant Mariner alleged affirmatively that she had conveyed the property to the Bliss Townsite Company on April 9, 1910, and alleged that it secured a warranty deed for valuable consideration from appellant Mariner on said date. Upon these issues the cause was tried.

The trial court made certain findings of fact and conclusions of law, but we shall refer only to those findings which appear to be involved upon this appeal:

Findings of Fact: That the plaintiff is a corporation duly organized under the laws of Wyoming; that on the 13th day of January, 1905, the plaintiff filed with the Secretary of State of Idaho its...