Schmitt & Brother Company v. Mahoney
| Decision Date | 21 March 1900 |
| Docket Number | 9,093 |
| Parties | SCHMITT & BROTHER COMPANY v. JEREMIAH MAHONEY ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dawes county. Tried below before WESTOVER, J. Reversed.
REVERSED.
Albert W. Crites, for plaintiff in error, against plea in abatement cited: Civil Code, secs. 456-470; Compiled Statutes, ch. 16 secs. 62-70; Bates' Ohio Statutes, sec. 5679 et seq.; Bates, Pl. & Pr. 223.
Allen G. Fisher, contra, said that no pleading of any nature to the plea in abatement had been served or filed, and the facts stood admitted. Counsel cited: Compiled Statutes, ch. 16 sec. 67; 5 Thompson, Corporations, sec. 6754; 3 Ency. Pl. & Pr. 96; Verein v. Funck, 18 Ia. 473.
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 the plea in abatement and made a part thereof.
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 Ohio court, the corporation dissolved is described as "Schmidt & Brother Co." whilst plaintiffs' name is designated in some of the pleadings and proceedings in the case at bar as "Schmitt & Brother 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 at some places in the journal entries, the name appears as "Schmitt & Bro. 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 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; Carrall v. State, 53 Neb. 431, 73 N.W. 939; Kinney v. Harrett, 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 has existed for more than two years. 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:
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 of Civil Procedure, sec. 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 invoked certain sections of chapter 16, Compiled Statutes, entitled "Corporations," to which consideration will now be given.
Section 63 declares: "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 abate by the dissolution of such corporation, whether such dissolution occur 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: "Any corporation created by this chapter may, at any time after its dissolution, whether such dissolution occur 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 the 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 the 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 though the corporation had never been dissolved. The purpose and objects of the sections were to save every corporate right and power to defunct corporations, that the interests of its former stockholders as well as those of its creditors might be preserved. And the sections in question, being special provisions in regard to a particular subject, control any and all general powers. This is a familiar rule. State v. Cornell, 54 Neb. 72, 74 N.W. 432.
It is true that the sections copied above from chapter 16, Compiled Statutes, were enacted with special reference to domestic corporations or those organized under the laws of this state which should become dissolved. But, in the absence of evidence on the subject, the presumption must be indulged that there exists in the state of Ohio statutory provisions the same as those found in the sections quoted from chapter 16, Compiled Statutes. Haggin v. Haggin, 35 Neb. 375, 53 N.W. 209; Stark v. Olsen, 44 Neb. 646, 63 N.W. 37; Chapman v. Brewer, 43 Neb. 890, 62 N.W. 320; Scroggin v. McClelland, 37 Neb. 644, 56 N.W. 208; Smith v. Mason, 44 Neb. 610, 63 N.W. 41; Bates' Annotated Ohio...
To continue reading
Request your trial