Shepherd v. F. J. Kress Box Co

• Decision Date: 12 June 1930
• Citation: 153 S.E. 649
• Parties: SHEPHERD. v. F. J. KRESS BOX CO. et al.
• Court: Virginia Supreme Court

153 S.E. 649

SHEPHERD.

v.F. J. KRESS BOX CO. et al.

Supreme Court of Appeals of Virginia.

June 12, 1930.

Under Code 1919, § 6061, suit is commenced as of the date of placing the writ in the hands of the officer for service, and this was done within a few days of the expiration of the three-year period from the date of dissolution of the corporation under section 3810. Section 3810 provides for dissolution of corporation by consent of stockholders and issuance of certificate by corporation commission, and further provides that corporation shall continue for three years for purpose of prosecuting and defending suit, and that the dissolution shall not affect the rights of creditors. Section 3815 provides that actions against corporation shall not abate by reason of dissolution or expiration of corporation's charter before final judgment is obtained.

Error to Hustings Court of Petersburg.

Suit by T. J. Shepherd against the F. J. Kress Box Company and others. From a decree dismissing the suit as to the defendant named, plaintiff brings error.

Reversed and remanded.

James Mann, of Norfolk, and Chas. Hall Davis, of Petersburg, for plaintiff in error.

J. Gordon Bohannan, of Petersburg, for defendants in error.

HOLT, J.

In 1903 the F. J. Kress Box Company was organized and chartered as a joint stock cor poration under the laws of the state of Pennsylvania, with its principal office at Pittsburgh, in that state.

On June 19, 1908, there was incorporated in Virginia by the same people another joint stock company bearing the same name, designed to carry on business of the same character with its principal office at Petersburg.

These companies were close corporations, were both controlled by F. J. Kress, and were operated from the Pittsburgh office. Their affairs were to a certain extent mingled, and it is charged that some of the assets of the Virginia company were improperly transferred to the Pennsylvania corporation, which transfer, it is claimed, has tended to defeat a just debt due to the plaintiff from the Virginia company for services rendered by him to it before and after its dissolution.

In the fall of 1924, the stockholders of the Virginia corporation proceeded in the manner provided for by law to dissolve it. Code, § 3810. The certificate of dissolution bears date November 3, 1924. Plaintiff states that he knew nothing about this, but worked for it then and afterwards under an antecedent contract.

The writ was placed in the hands of the officer on October 7, 1927, so suit was commenced on that date (Code, § 6061; Burks Pl. & Pr. (2d Ed.) pp. 390, 391), or within a few days of the expiration of the three-year period from the date of dissolution ordered by the State Corporation Commission at the instance of stockholders, and the bill was filed on November 21, or after that date. It named as defendants "F. J. Kress Box Company, Virginia Corporation, a corporation under the laws of the State of Virginia; F. J. Kress, Paul C. Kress and Mary Kress, Directors of said F. J. Kress Box Company, Virginia Corporation, and as such trustees of said Virginia Corporation; F. J. Kress, individually; and F. J. Kress Box Company, a Pennsylvania Corporation."

All of them, except the Virginia corporation, were nonresidents. There was no personal service of process on any of them and no general appearance. They did appear specially, and asked that the suit be dismissed as to them for want of jurisdiction. It appeared from an inspection of the record that the proceedings were in personam and not in rem, or on attachment, and, since these defendants were not actually before the court voluntarily, or on proper personal process, they were dismissed from this litigation by order of date March 15, 1928.

Thereafter Mr. J. Gordon Bohannan made in writing this suggestion to the court:

"The undersigned, an attorney at law, practicing in your Honor's court, respectfully represents that upon the institution of this suit and the service of process to answer the billof complaint to be filed herein, he was retained by F. J. Kress Box Company, Virginia Corporation, one of the defendants named in the writ, to represent the said corporation.

"It appears from the allegations of the bill filed herein at the second November Rules,

1927, and from Exhibit 16 filed therewith that the said corporation was dissolved by an order of the State Corporation Commission of Virginia on the 3d day of November, 1924.

"The said process was served within the period of three years from the date of such dissolution. But the said period of three years from the date of such dissolution having now expired and having expired before the bill was filed, the final dissolution of the said corporation for all purposes is suggested to the court.

"J. Gordon Bohannan,

"Attorney at Law."

Argument was held on this suggestion and a decree entered on the 2d day of October,

1928, abating the said suit as to the said Virginia corporation, and ordering that it be removed from the docket at the cost of the plaintiff. It is from that decree of October 2, 1928, dismissing the suit as to the Virginia corporation that this appeal is taken.

Having reached the conclusion that it was without jurisdiction, the court did not undertake to pass upon the merits of the plaintiff's case. We will, for the purposes of this appeal, and for those purposes only, assume that it is meritorious. If jurisdiction is established, the cause must be fought out in the trial court, and, if there is no jurisdiction, the plaintiff is without remedy here or there.

Plaintiff contends that quoad this suit there has been no dissolution, and in...