Service & Wright Lumber Co. v. Sumpter Valley Ry. Co.

• Decision Date: 15 June 1915
• Parties: SERVICE & WRIGHT LUMBER CO. v. SUMPTER VALLEY RY. CO.
• Court: Oregon Supreme Court

149 P. 531

81 Or. 32

SERVICE & WRIGHT LUMBER CO. v. SUMPTER VALLEY RY. CO.

Supreme Court of Oregon

June 15, 1915

In Banc.

Appeal from Circuit Court, Baker County; Dalton Biggs, Judge.

Action by the Service & Wright Lumber Company against the Sumpter Valley Railway Company. Judgment for plaintiff, and defendant appeals. Action dismissed.

This action was begun on September 11, 1909, and after trial a judgment was duly made and entered in favor of plaintiff on November 3, 1911. Thereafter an appeal was taken to this court, being perfected on April 29, 1912. On September 30 1913, this court handed down a decision reversing the judgment. Service Lumber Co. v. Sumpter Valley Ry Co., 67 Or. 63, 135 P. 539. One of the issues raised by the answer and reply in the first trial was the contention of defendant that the plaintiff, having accomplished a voluntary dissolution on May 6, 1907, had no power to institute this action. The cause coming on for retrial upon the remand from this court defendant, by leave of the trial court, filed an amended answer, one of which amendments pleaded in effect that the five years allowed to plaintiff by section 6699, L O. L., in which to wind up its corporate affairs had expired and that therefore the action had abated. Plaintiff's demurrer to this defense was sustained. The cause then proceeded to trial upon the issues as joined before the first trial. A judgment was duly entered on January 9, 1914, in favor of plaintiff, and defendant appeals.

Bean J., dissenting.

John L Rand, of Baker, and Zera Snow, of Portland (Snow & McCamant, of Portland, on the brief), for appellant. Robert Service, of Baker, and Samuel White, of Portland, for respondent.

BENSON, J. (after stating the facts as above).

In the appellant's abstract of record we find some 17 assignments of error, but we shall consider one question only and that is as to whether or not at the time of the trial the plaintiff's right of action had abated. We conclude that it had and it remains only to give our reasons for such conclusion. The plaintiff corporation on May 6, 1907, took such steps as are prescribed by statute for a voluntary dissolution. This was done, doubtless, in order to avoid the burdens of annual reports and the payment of annual license fees. Section 6699, L. O. L., is as follows:

"All corporations that expire by limitation specified in their articles of incorporation, or are dissolved by virtue of the provisions of section 6701, or are annulled by forfeiture or other cause by the judgment of a court, continue to exist as bodies corporate for a period of five years thereafter, if necessary for the purpose of prosecuting or defending actions, suits, or proceedings by or against them, settling their business, disposing of their property, and dividing their capital stock, but not for the purpose of continuing their corporate business."

As to the effect of this statute in a case like the one at bar it is said in the case of Dundee Mortgage & Trust Investment Co. v. Hughes (C. C.) 77 F. 856:

"In some of the states where the corporate existence is so extended by statute, express authority is given to prosecute to a final judgment all actions begun by the corporation within the limited period. Bank v. Cooper, 36 Me. 179; Lumber Co. v. Ward, 30 W.Va. 43, 3 S.E. 227. Under such a law was decided the case of Bewick v. Harbor Co., 39 Mich. 700, which is cited by counsel for the plaintiff. In that case the court held that the corporation might prosecute to a close any action commenced within the three-year period of limitation fixed by the statute, but in so holding gave effect to another provision of the law upon the same subject, which provided that no such suit, once commenced, should become abated at any time until brought to a close. There

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