S & A Realty Co. v. Hilburn

Decision Date14 June 1971
Docket NumberNo. 46274,46274
Citation249 So.2d 379
PartiesS & A REALTY COMPANY, a Corporation, Complainant/Appellant, v. L. B. HILBURN and Wife, Jane B. Hilburn, Defendants/Appellees.
CourtMississippi Supreme Court

Wells, Wells, Marble & Hurst, Jackson, for complainant-appellant.

L. Breland Hilburn, Jackson, for defendants-appellees.


This appeal is from a final decree of the Chancery Court of Madison County which sustained a motion by L. B. Hilburn and his wife to dismiss the bill of complaint of S & A Realty Company for specific performance of a contract. The basis of the motion was that the complainant, a foreign corporation, was transacting business within the state, but had not qualified so to do, and was therefore barred from maintaining a suit in the courts of this state.

S & A Realty Company, a lessee of the Hilburns, filed its bill for specific performance of a lease contract which was executed on January 10, 1952, on certain lands in Madison County. The lease was for a span of ten years with an option to renew for an additional ten years and in the event of renewal the lessee was thereby granted an option to purchase the property. The lessee alleges that it had complied with all provisions of the lease and has now offered to exercise its option to purchase, but that the lessors, appellees, have refused to comply with the contract. This refusal precipitated this suit.

The lessors filed a sworn motion to dismiss the bill. It states:


That the S & A Realty Co., successor to the Alvin Siteman, Inc., was present in the State of Mississippi and was doing and transacting business by virtue of the performance of the following acts to-wit:

(A) The leasing of real property located in Madison County, Mississippi, said lease being finally executed and given force and effect within the state of Mississippi on 17th (sic) day of January, 1952.

(B) An agreement to construct a service station upon the property of the Defendants and the subsequent construction of said service station by lessor or its agent or agents acting for its principal.

(C) The maintaining and operating of the service station from date of construction until the present date either by lessee or by its agent or agents.

(D) The agreement to pay and the payment of $1200.00 annual rent in monthly installments to lessor for 10 years and lessee paying $125.00 per month upon releasing all being a continuing obligation to be performed by lessee and now being performed by lessee.

(E) The performance of acts and transaction which are pursuant to the very purpose of the corporation's existence and not acts incidental to its purpose.

(F) The presence of the corporation within the state in an effort to purchase and hold real property in fee simple in the corporate name, also pursuant to the purpose of the corporation.

(G) Other matter to be shown upon hearing.


That the S & A Realty Company was formerly the Alvin Siteman, Inc. and that said Alvin Siteman, Inc., a Missouri Corporation, is not qualified to transact or do business in the State of Mississippi in that it has no Certificate of Authority pursuant to Section 5309-239 and that said Alvin Siteman, Inc. or S & A Realty Company is not authorized to transact business in this State pursuant to its purpose of incorporation.

Whereupon, the appellant, S & A Realty Company, filed an affidavit contra to the motion to dismiss. It provides in short:

The principal executive offices and place of business of S & A Realty Company, formerly of Alvin Siteman, Inc., is the County of St. Louis, State of Missouri. That said corporation was formerly named Alvin Siteman, Inc., but by change of name it is now S & A Realty Company. That said corporation is not and has never been qualified to do business in the State of Mississippi. That the only asset that it has in the State of Mississippi, is a lease on the land that is the subject of this lawsuit, under which lease it has sub-leased said property to Rainbow Oil Company, which company operates a service station thereon. * * *

The trial consisted of the introduction of certificates of the Secretary of State which indicate that Alvin Siteman, Inc. and S & A Realty Company, a Missouri corporation, had not qualified to do business within this state. A certificate and articles of incorporation of the S & A Realty Company of St. Louis, Missouri, were introduced, as was a certificate of amendment, indicating that the name of the corporation had been changed from Alvin Siteman, Inc. to S & A Realty Company. The lease between the parties was introduced as was a certificate of incorporation of Rainbow Oil Company, a Mississippi corporation.

The pleadings, including the sworn motion and counter-affiadavit and the exhibits, compose the record on appeal. There was no oral testimony for the Court to consider.

The sole question before the trial court, and which is now before this Court, is whether the complainant, a foreign corporation, was 'doing business' within this state without qualifying as required by Mississippi Code 1942 Annotated section 5309-239 (Supp.1970) so that the courts of this state are barred to it as a party complainant.

In Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 877-878, 50 So.2d 615, 620-621 (1951), we stated:

Whether a corporation is doing business in a state in the sense required for a process statute is a question dependent primarily upon the facts and circumstances of each particular case. A less strict interpretation of the phrase 'doing business' is applied where there is an issue of whether a state court has jurisdiction, than is applied where the statute involved is one stating that a corporation must qualify before doing business in order to have access to the courts of the state. * * *

It is our opinion that a strict construction of Mississippi Code 1942 Annotated section 5309-239 (Supp.1970), is required, it being penal, before access to the state courts is precluded...

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25 cases
  • Estate of Jones v. Phillips, No. 2006-CA-01898-SCT.
    • United States
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    • August 28, 2008
    ...v. Ritter, 556 So.2d 303, 308 (Miss.1989) (citing MISS CAL 204, Ltd. v. Upchurch, 465 So.2d 326, 330 (Miss.1985); S & A Realty Co. v. Hilburn, 249 So.2d 379, 382 (Miss.1971)). Jurisdiction is determined as of the time the suit is filed. Euclid-Mississippi v. Western Cas. & Sur. Co., 249 Mis......
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    ...Company, 568 So.2d 720, 723 (Miss.1990); Cole v. National Life Insurance Co., 549 So.2d 1301, 1303 (Miss.1989); S & A Realty Co. v. Hilburn, 249 So.2d 379, 382 (Miss.1971). Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. Tha......
  • McDaniel v. Ritter
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    ...within the state proceeds on an ad hoc basis. Miss Cal 204, Ltd. v. Upchurch, 465 So.2d 326, 330 (Miss.1985); S & A Realty Co. v. Hilburn, 249 So.2d 379, 382 (Miss.1971). Our review of jurisdictional issues is essentially de novo: "In making this determination, this Court is in the same pos......
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    ...(insufficient "minimal contacts" for state to assert jurisdiction over an individual who gave a speech in state); Cf. S & A Realty Co. v. Hilburn, 249 So.2d 379 (Miss.1971) (construing "doing business" provision of statute which barred unqualified corporations from suing in state courts): H......
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