Ryland v. Hollinger

• Decision Date: 28 July 1902
• Docket Number: 1,668.
• Citation: 117 F. 216
• Parties: RYLAND v. HOLLINGER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 216

RYLAND v. HOLLINGER et al.

No. 1,668.

United States Court of Appeals, Eighth Circuit.

July 28, 1902

R. E Ball and N. H. Loomis, for plaintiff in error.

G. W Hurd and T. E. Dewey, for defendants in error.

In this action the plaintiff in error seeks to recover of the defendants in error and others, as copartners using the firm name of A. J. Gillespie Commission Company, and one T Kinahan, upon seven promissory notes, for varying amounts all made at Kansas City, Kan., September 29, 1898, by said Kinahan, and payable, with interest as stated, to the A. J. Gillespie Commission Company, or order, at the Interstate National Bank, Kansas City, Kan., at specified dates, and all indorsed, 'A. J. Gillespie Commission Co., by J. S. Hollinger, Pt.;' which notes said A. J. Gillespie Commission Company transferred for value, before maturity, and which are held and owned by the plaintiff, and are unpaid, and were duly protested for nonpayment. The facts set forth in the amended petition, on which it is claimed that the defendants in error are liable as partners, are, in substance: That they, with other defendants named, on or about the 29th day of September, 1898, signed and acknowledged articles of agreement for incorporation under the name of the A. J. Gillespie Commission Company, located at Kansas City, Jackson county, Mo.; its capital being $100,000, in shares of $100 each. That such articles were executed in accordance with the laws of the state of Missouri, and were filed in the office of the recorder of deeds at Kansas City, Mo., and a certified copy thereof filed in the office of the secretary of state of that state, who issued to such parties a certificate of incorporation. It is further alleged that, though the persons executing the said articles subscribed for stock of such corporation, they never intended to take, and have not taken, any of the stock; and have not, and never intended to have, any office of such corporation in the state of Missouri, but to have its only office in the state of Kansas; and that the notes in suit were made and delivered to the A. J. Gillespie Commission Company, and by that company sold, and the proceeds received, before any certificate of incorporation was issued by said secretary of state; and that such proceeds went into the treasury of said association, and were retained and used after the issuing of said certificate. There is, however, no allegation that any of said notes were so indorsed by the A. J. Gillespie Commission Company, or transferred or delivered by that company to any one, before the said certificate of incorporation was issued. The defendants in error demurred to said amended petition on the ground that it did not state facts sufficient to constitute a cause of action against them. The demurrers were sustained, and, as the plaintiff elected to stand by this pleading, judgment was rendered in favor of the defendants who had demurred.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

1. The amended petition alleges that the articles of agreement for incorporation of the A. J. Gillespie Commission Company were signed and acknowledged in accordance with the laws of Missouri, and for amounts of stock aggregating its entire capital, 'on or about' the 29th day of September, 1898, and were filed in the office of the recorder of deeds at Kansas City, Mo., where by the articles the corporation was located, and a certified copy thereof filed in the office of the secretary of state of Missouri, who issued to the incorporators a certificate of incorporation. These were all the steps necessary to form and constitute a valid corporation, the existence of which began when the secretary of state issued the certificate of incorporation. Rev. St. Mo. Sec. 2492.

2. Other allegations of the amended petition seeking to assail the validity of the corporation are irrelevant, as they relate to matters to be done after the corporation had come into existence. The recording of a certified copy of the certificate of incorporation, establishing an office in the state for the transaction of business, election of resident directors, and payment for the stock subscribed, are all acts to be done after the corporation had become an existing body. Rev. St. Mo. Secs. 961, 1283, provide for the collection of stock subscriptions, and Id. Sec. 1024, gives the remedy where there is failure to keep an office in the state. As to any of these acts to be done after the corporation became an existing body, there could be no failure affecting its status or corporate rights within the brief time covered by these allegations of the amended petition; and as to such matters the...