S.C. Herbst Importing Co. v. Hogan
| Decision Date | 15 July 1895 |
| Citation | 41 P. 135,16 Mont. 384 |
| Parties | S. C. HERBST IMPORTING CO. v. HOGAN. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; J. J. McHatton Judge.
Action by the S. C. Herbst Importing Company against Joseph Hogan for the purchase price of goods and for the amount of an assigned balance of account. From a judgment by default for plaintiff, an order refusing to set the same aside, and an order refusing to dissolve an attachment in the suit defendant appeals. Reversed.
John T Baldwin, for appellant.
Stephen De Wolfe, for respondent.
HUNT J. (after stating the facts).
We find no error in the exercise of the discretionary power of the court in refusing to set aside the default of the defendant, but are constrained to reverse the case upon other grounds.
The first count of plaintiff's complaint is fatally defective, and upon a general demurrer should have been so held. The plaintiff nowhere pleads any indebtedness by the defendant to plaintiff, or to any one else. This omission may have been a clerical error, but it is none the less material. Nor does plaintiff aver that the goods and merchandise sold and delivered to defendant were sold or delivered by plaintiff, or by any one in behalf of plaintiff, or by any one else. There is no averment whatsoever of the count to so connect the parties with any wrong done as to entitle the plaintiff to redress.
By the special demurrer to the first count, appellant attempts to raise a question more properly tested by a demurrer based upon the ground that plaintiff has no legal capacity to sue. Bliss, Code Pl. (3d Ed.) § 408a; Maxw. Code Pl. pp. 370, 371. As bearing directly on this point, see the following cases, which hold that a legal capacity to sue is an ordinary incident to a corporation, and that ground of demurrer for want of capacity to sue must appear from allegations as made in the complaint, and not from want of allegations: Sewing Mach. Co. v. Moore, 2 Dak. 280, 8 N.W. 131; Manufacturing Co. v. Reed, 3 Utah, 506, 24 P. 1056; Pom. Code Rem. § 208; Smith v. Sewing Mach. Co., 26 Ohio St. 562; Bank v. Donnell, 40 N.Y. 410.
The general demurrer to the second count was properly overruled. But, while the count states a cause of action, we think the special demurrer was well taken. Whether the Silver City Distilling Company, assignor of plaintiff, had or had not a legal existence, and what the nature of its existence was, ought, by all reasonable rules of pleading, to appear with some degree of certainty. The practice of most Code states makes uncertainty in a complaint ground for a motion to have the objectionable pleading made more certain, but, under the Montana practice, demurrer is the appropriate remedy. Code Civ. Proc. § 87; Boone, Code Pl. § 54.
The answer proposed by defendant pleads that the plaintiff is a foreign corporation, and never has complied with the laws of the state requiring a certificate to be filed in the office of the secretary of state, designating an agent, who shall be a citizen of the state, upon whom service of summons and other process may be made, and providing, further that, if such foreign corporation shall fail to comply with the provisions of the statute referred to, all its contracts shall be void as to the corporation, and no court of this state shall enforce the same in favor of the corporation. Act March 8, 1893 (Sess. Laws 1893, p. 91). The...
To continue reading
Request your trial