North American Mortgage Co. v. Hudson

Citation168 So. 79,176 Miss. 266
Decision Date18 May 1936
Docket Number32254
CourtMississippi Supreme Court
PartiesNORTH AMERICAN MORTGAGE CO. v. HUDSON et awl

Division B

1. APPEAL AND ERROR.

Supreme Court would entertain appeal from judgment dismissing bill on plea in abatement without trial on merits where plea was considered without trial on merits by consent of parties although practice of trying suits in piecemeal was disapproved and pleading in abatement was inconsistent with good chancery practice.

2 CORPORATIONS.

Corporation incorporated under laws of foreign country purchasing commercial paper secured by trust deeds in state and collecting notes and foreclosing trust deeds by agent in state who leased property pending foreclosures to realize on mortgages held not "doing business in state" within statute requiring foreign corporation doing business in state to file charter with secretary of state and appoint agent for service of process (Code 1930, secs. 4140, 4164).

HON BEN STEVENS, Chancellor.

APPEAL from chancery court of Lamar county HON. BEN STEVENS, Chancellor.

Suit by the North American Mortgage Company against A. A. Hudson and others. From a judgment dismissing the bill, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

H. M. McIntosh, of Collins, and Dale & Coughlin, of Hattiesburg, for appellant.

The court committed error in sustaining the plea in abatement.

It is our contention that appellant never did any business in the state of Mississippi within the meaning of the statutes. It was not shown that appellant purchased in Mississippi any of the Foreman securities. On the other hand, it is fair to infer that such securities were bought out of Mississippi. The Foreman Company maintained their offices in Chicago, Illinois, and appellant maintained its office in Montana and did not have an office of any kind in Mississippi.

So that the only business ever done in Mississippi by appellant was by way of collecting, or endeavoring to collect, through George M. Foreman & Company the indebtednesses so bought out of the state. In other words, appellant purchased Mississippi securities outside of Mississippi and collected, or endeavored to collect, the same within the state through George M. Foreman & Company.

G. M. A. C. v. Shady Side Coal Co., 135 S.E. 272; Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328.

It is our contention that even if appellant had ever been at one time engaged in doing business in the state of Mississippi within the meaning of the statutes, it is not now doing business and was not so doing business at the time of the institution of this suit and, therefore, that it was and is not forbidden to institute and prosecute this suit.

Long Beach Canning Co. v. Clark, 141 Miss. 177, 106 So. 646; Harleston v. West Louisiana Bank, 91 So. 423.

Davis & Davis, of Purvis, Heidelberg & Roberts, of Hattiesburg, Eaton & Eaton, of Gulfport, and Wilbourn, Miller & Wilbourn, of Meridian, for appellees.

The appellant cannot seriously contend that the North American Mortgage Company never did any business in the state of Mississippi within the meaning of said statutes. We are not unmindful of the holdings of our own court on the subject of doing business on the part of a foreign corporation where the question of interstate commerce comes into play. However, the question here is not that of interstate commerce. The appellant had dealings with Mississippi people and Mississippi property in the state of Mississippi, through a long period of years.

In the case now before the court we are not dealing with an isolated transaction, but we are dealing with a case where a foreign corporation is doing business in Mississippi contrary to its laws and public policy. It is seeking to maintain an action of suit in the courts of this state without having complied with the terms and provisions of section 4140 of the Mississippi Code of 1930.

One of the earlier and outstanding Mississippi cases dealing with the question here presented, is the case of Quartette Music co. v Haygood, 108 Miss. 765, 67 So. 211. In that case, our court quoted with approval from the case of Bohn v. Lowery, 77 Miss. 427, 27 So. 605, as follows. "Every contract made for, or about, any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the defaulter; because a penalty implies a prohibition, though there are no prohibitory words in the statute."

It cannot be said that the appellant herein was engaged in interstate commerce in the matter out of which the suit here involved grew, but was conducting its business in this state and cannot enforce its rights, if any it has stated in the suit, in the courts of this state.

Peterman v. Blumenfeld, 156 Miss. 35, 125 So. 548; Item Co. v. Shipp, 140 Miss. 699, 106 So. 437.

The courts are unanimous in holding that each case must be decided on its own individual facts and the evidence in the case at bar establishes conclusively, in our opinion, the fact that the North American Mortgage Company was doing business in the state of Mississippi without having been authorized to so conduct business here, as was the finding of facts on the part of the trial court.

Wiley Electric Co. v. Elec. Storage Battery Co., 167 Miss. 842, 147 So. 773; 14A. C. J. 1270, par. 3977; Houston v. National Mutual Building & Loan Assn., 80 Miss. 31, 31 So. 540.

OPINION

Ethridge, P. J.

The appellant, a corporation under the laws of Friesland, Kingdom of the Netherlands, which had an office and was doing business at Bozeman, Mont., brought suit in the chancery court of Lamar county, Miss., to recover certain property sold by the George M. Foreman Company, of Chicago, Ill., to A. A. Hudson, taking mortgage security for the purchase money, said notes being payable to George M. Foreman, at Chicago, Ill., and sold thereafter to the North American Mortgage Company. The indebtedness thus...

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16 cases
  • Morrison v. Guaranty Mortgage & Trust Co
    • United States
    • Mississippi Supreme Court
    • December 9, 1940
    ... ... Pyramid ... Securities Co., 165 Miss. 269, 147 So. 328; North ... American Mortgage Co. v. Hudson, 176 Miss. 266, 168 ... So. 79; Long Beach Canning Co. v ... ...
  • Watson v. J. R. Watkins Co
    • United States
    • Mississippi Supreme Court
    • February 26, 1940
    ... ... Tea Co. v. Malone (Tex.), 163 S.W. 663; ... Christian v. Mortgage Co. (Ala.), 7 So. 427; ... Ginn v. Mortgage Co., 92 Ala. 135; Railway v ... T. Corp. v. Stuart, 187 So. 204 ... In the ... case of North American Mortgage Company v. Hudson, ... 168 So. 79, our court held that ... ...
  • State ex rel. Eaton v. Hirst, 2047
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    • May 25, 1938
    ... ... Ass'n., 90 F. 514 (C. C. A., 8th Circuit). As to ... mortgage liens, see Christian v. American Freehold Land & ... Mortgage Co. (Ala.) ... without authority to do business in Wyoming, Railway Co ... v. North Dakota, 250 U.S. 13; Regan v. Trust ... Company, 154 U.S. 413, and is ... v. Hudson, 176 Miss. 266, 168 So. 79, where the facts ... were, shortly stated, ... ...
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