Scientific American Club v. Horchitz

• Decision Date: 17 December 1907
• Citation: 128 Mo. App. 575,106 S.W. 1117
• Parties: SCIENTIFIC AMERICAN CLUB v. HORCHITZ.
• Court: Missouri Court of Appeals

106 S.W. 1117

128 Mo. A. 575

SCIENTIFIC AMERICAN CLUB v. HORCHITZ.

St. Louis Court of Appeals. Missouri.

December 17, 1907.

1. CORPORATIONS — FOREIGN CORPORATIONS — RIGHT TO SUE — NONCOMPLIANCE WITH STATUTE—DEFENSE.

A motion by the defendant to dismiss an action by a foreign corporation, made pending an appeal from a justice's judgment against him, based on the ground that the corporation has not complied with the requirements of the statutes to entitle it to maintain the action, must be denied, since the defense, to be available, must be pleaded in the answer.

2. SAME — PRESUMPTION.

A compliance with the law by a foreign corporation suing in the courts of the state will be presumed, and noncompliance is available only as a defense.

3. JUSTICES OF THE PEACE—APPEAL—REQUISITES.

Where an appeal is taken from the judgment of a justice on a day after its rendition, and no notice of the appeal is served on the adverse party, the court on motion must affirm the judgment, under Rev. St. 1899, § 4076 [Ann. St. 1906, p. 2221], providing that, where appellant fails to give notice, the judgment shall be affirmed or the appeal dismissed at the option of the appellee.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the Scientific American Club against Louis Horchitz. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank K. Ryan, for appellant. Bishop & Cobbs, for respondent.

BLAND, P. J.

The action was begun before J. J. Spaulding, Esq., a justice of the peace, in the city of St. Louis. An answer was filed to the complaint and the issues were tried by the justice on May 28, 1906, resulting in a judgment for plaintiff. On June 9, 1906 (seven days after the judgment was rendered by the justice), defendant took an appeal to the circuit court. No notice of the appeal was ever served on plaintiff. After the lapse of three terms of the circuit court, to wit, the June, October, and December terms, 1906, plaintiff at the February term, 1907, filed its motion to affirm the judgment of the justice, for the reason no notice of the appeal had been given. At the same term defendant filed the following motion (omitting caption), which was supported by an affidavit: "Now comes Louis Horchitz, defendant in the above-entitled cause, and moves to dismiss the proceedings herein for the reason that the plaintiff was a foreign corporation organized under the laws of the state of New York, and resident in this state and doing business herein at the times mentioned in plaintiff's petition herein, and that the transactions alleged in said petition were had in this state; the plaintiff had not previously complied with the...