Schmidt & Bro. Co. v. Mahoney
| Citation | 60 Neb. 20,82 N.W. 99 |
| Court | Supreme Court of Nebraska |
| Decision Date | 21 March 1900 |
| Parties | SCHMIDT & BRO. CO. v. MAHONEY ET AL. |
1. The names “Schmitt & Brother Co.” and “Schmidt & Brother Co.” are idem sonans.
2. The provisions of the Code of Civil Procedure relative to abatement and revivor of actions are applicable to causes brought to this court.
3. Under section 63, c. 16, Comp. St., a suit does not abate by the dissolution of a corporation plaintiff or defendant organized under the laws of this state.
4. A dissolved domestic corporation may, after such dissolution, prosecute any suit in its corporate name in the same manner and with like effect as if the corporation had not ceased to exist.
5. In the absence of proof, the laws of a sister state will be presumed to be the same as those of this state.
6. By comity between the states, corporations of one state may sue in the courts of another state, the same as can a domestic corporation, unless prohibited by legislative enactment.
7. In a replevin under an answer consisting of a general denial, the defendant may prove any matter which is a defense to the cause of action of plaintiff, as that the defendant has a special interest in, and right to the immediate possession of, the property, by virtue of a chattel mortgage.
8. In replevin, when the value of the property is stated in the petition and admitted by the answer, the question of value is not open to proof.
9. Instructions must be considered together.
10. A finding in replevin of a general ownership in the defendant is not sustained by proof of a special interest in the property.
11. To review alleged errors in refusing instructions, they must be called to the attention of the trial court by a motion for a new trial.
Error to district court, Dawes county; Westover, Judge.
Action by the Schmidt & Bro. Company against Jeremiah Mahoney and others. Judgment for defendants, and plaintiff brings error. Reversed.Albert W. Crites, for plaintiff in error.
Allen G. Fisher, for defendants in error.
This was an action of replevin, and the plaintiff, being unsuccessful on the trial in the court below, prosecuted error proceedings. The defendant Record filed a cross petition in error, and subsequently a plea in abatement; setting up in said plea, in effect, that plaintiff, an Ohio corporation, was dissolved on March 6, 1895, by the judgment of the superior court of Cincinnati; that it appointed a receiver of the assets of said corporation, who subsequently made a final report of his doings, which was approved and confirmed by the court, and the receiver discharged. An authenticated copy of the said judgment and proceedings of the superior court of Cincinnati is attached to, and made a part of, the plea in abatement. The plaintiff insists that there is no record of its dissolution by the order or judgment of any court, and that the transcript of the record appended to the plea in abatement, and exhibited therewith, does not in terms or in fact adjudicate the dissolution of the plaintiff, but purports to dissolve another and different corporation. This contention is predicated on the single fact that in the record of the proceedings of the higher court the corporation dissolved is described as “Schmidt & Bro. Co.,” while plaintiff's name is designated in some of the pleadings and proceedings in the case at bar as “Schmitt & Bro. Co.” This argument is not convincing. Plaintiff's name is spelled in different ways in the record before us. In the petition in the court below, the petition in error, and motion for a new trial, as well as some places in the journal entries, the name appears as “Schmitt & Bros. Co.,” while in one of the answers filed and at one place in the journal of the proceedings in the district court the name is spelled precisely as in the record of the Ohio court, and in the instructions of the court the plaintiff is designated as “The Smith Brothers Company.” It is obvious that the names “Schmidt & Brother Co.” and “Schmitt & Brother Co.” are idem sonans. Rupert v. Penner, 35 Neb. 587, 53 N. W. 598, 17 L. R. A. 824;Carrall v. State, 53 Neb. 431, 73 N. W. 939;Kinney v. Harrett (Mich.) 8 N. W. 708;People v. Gosch, 82 Mich. 22, 46 N. W. 101. It follows that the undisputed evidence discloses that plaintiff is a dissolved corporation, and that such dissolution for more than two years has existed. The question presented is whether this action abated, or can be further prosecuted.
Sections 463, 467, and 468 of the Code of Civil Procedure follow:
“Sec. 467. An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but where the defendant also shall have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.
Sec. 468. When it appears to the court by affidavit that either party to an action has been dead, or where a party sues or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or successor, without the consent of both parties, it shall order the action to be stricken from the docket.”
The provisions of the foregoing sections are urged upon our attention by the defendant in support of his plea in abatement; his contention being that, the plaintiff having ceased to exist as a corporation more than a year since, there can be no revivor without the consent of the defendant, and the action must be dismissed or stricken from the docket. Counsel for plaintiff, on the other hand, insists that the sections of the Code of Civil Procedure quoted are applicable to actions pending in nisi prius courts only, and do not relate in any manner to causes pending in this court on error or appeal. We are unable to appreciate the force of this argument. Unquestionably, the provisions of the Code of Civil Procedure are applicable to the revivor of actions in the supreme court, and this court has so treated them. Bell v. Walker, 54 Neb. 222, 74 N. W. 617. This is not one of those actions which abate by the death of a party. Code Civ. Proc. § 454 et seq. If there were no other statutory provisions in this state on the subject,--other than those to which reference has already been made,--we would incline to the position that the action should have been revived and prosecuted by the stockholders of the plaintiff corporation within the period designated in section 466 of said Code, and that a revivor could not be had after that time without the consent of the defendant.
Counsel for plaintiff invokes certain sections of chapter 16, Comp. St., entitled “Corporations,” to which consideration will now be given: Section 63 declares that “no suit or action, either at law or in chancery, pending in any court in favor of or against any banking or other corporation, shall be discontinued or abated by the dissolution of such corporation, whether such dissolution occurred by the expiration of its charter or otherwise; but all such suits or actions may in all courts of justice, be prosecuted by the creditors, assigns, receivers or trustees, having the legal charge of the assets of such dissolved corporation to final judgment or decree, in the corporate name of such dissolved corporation.” Section 67 of the same chapter provides that “any corporation created by this chapter may, at any time after its dissolution, whether such dissolution occurred by the expiration of its charter or otherwise, prosecute any suit at law or in equity, in and by the corporate name of such dissolved corporation for the use of the party entitled to receive the proceeds of any such suit, upon any and all causes of action accrued, or which, but for such dissolution, would have accrued in favor of such corporation, in the same manner and with a like effect as if such corporation were not dissolved.” Section 70 reads: “Writs of error upon judgments at law may be sued out and bills of review in chancery may be exhibited, in favor of or against any such dissolved corporation, and by its corporate name in the same manner and with like effect as if such corporation were not dissolved, and process thereon against any such dissolved corporation shall be served in the manner prescribed in this subdivision.” This legislation confers ample authority upon every dissolved corporation to prosecute suits in its corporate name as...
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