Northrup v. The A. G. Wills Lumber Company

• Decision Date: 06 December 1902
• Docket Number: 12,787
• Parties: L. L. NORTHRUP et al. v. THE A. G. WILLS LUMBER COMPANY
• Court: Kansas Supreme Court

70 P. 879

65 Kan. 769

L. L. NORTHRUP et al. v. THE A. G. WILLS LUMBER COMPANY

No. 12,787

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Allen district court; L. STILLWELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS -- Capacity to Sue -- Pleading. Lack of legal capacity in a plaintiff to sue must affirmatively appear on the face of his petition in order to subject it to demurrer for that reason; therefore, a petition by a corporation which merely fails to allege that the corporation has complied with the requirements of chapter 10, Laws of 1898, entitling it to sue, but which does not admit expressly or inferentially that it has failed to make such compliance is not demurrable for lack of legal capacity in the plaintiff to bring the action.

2. CORPORATIONS -- License -- Burden of Proof. When the issuance of a license to transact business is a matter of record in a known public office, the burden of proving its non-issuance is on the party asserting the negative fact.

Oscar Foust & Son, and Baxter D. McClain, for plaintiffs in error.

Altes H. Campbell, for defendant in error.

DOSTER C. J. All the Justices concurring.

OPINION

DOSTER, C. J.:

This was an action in debt to recover the amount of a lumber bill. The plaintiff alleged in its petition as follows:

"That it is and was at all the times hereinafter stated a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Texas."

The defendants demurred to the petition for the reason that it showed on its face a lack of legal capacity to sue. The demurrer was overruled, a trial had, and judgment rendered for plaintiff. Proper objections to the sufficiency of plaintiff's evidence were made and overruled. The defendants have prosecuted error to this court.

The ground of the demurrer to the petition was that the pleading showed the plaintiff to be a foreign corporation and failed to show that it had complied with the requirements of chapter 10, Laws of 1898, the last provision of section 12 of which act reads as follows:

"No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that the statements provided for in this section have been properly made." (Gen. Stat. 1901, § 1283.)

The above-mentioned act has been held to apply to foreign as well as domestic corporations. (The State v. Book Co., post, 69 P. 563.)

The demurrer was not well taken. The petition did not show on its face that the plaintiff lacked legal capacity to sue. It did not show anything on the subject, and, as against a demurrer, it did not need to make such showing, because demurrers to petitions will only lie when the defect affirmatively appears on the face of such pleadings.

"But this point cannot be raised by a demurrer, upon the ground that the complaint shows on its face that the plaintiff has no capacity to sue, for the complaint does not show anything of the kind. The most that can be said is that the complaint fails to show that the plaintiff has been invested with power to sue, but such omission affords no ground for demurrer, as it is based upon a defect (if defect it be) in the complaint and not upon what it shows on its face. The code, in section 165, allows a demurrer only when it appears upon the face of the complaint 'that the plaintiff has...