Singer & Talcott Stone Co. v. Hutchinson

• Decision Date: 24 October 1898
• Citation: 51 N.E. 622,176 Ill. 48
• Court: Illinois Supreme Court
• Parties: SINGER & TALCOTT STONE CO. v. HUTCHINSON et al.

176 Ill. 48

51 N.E. 622

SINGER & TALCOTT STONE CO.

v.HUTCHINSON et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to appellate court, First district.

Action by Dillon B. Hutchinson and others against the Singer & Talcott Stone Company. From a judgment of the appellate court (72 Ill. App. 366) dismissing a writ of error brought by defendant, defendant brings error. Reversed.

Ira W. & C. C. Buell and A. B. Jenks, for plaintiff in error.

T. A. Moran and Barnum, Humphrey & Barnum, for defendants in error.

PHILLIPS, J.

The plaintiff in error was incorporated April 20, 1872. Its charter expired April 20, 1892. The defendants in error brought suit against it January 21, 1893, and obtained judgment at the July term, 1895. The case was taken by appeal to the appellate court (61 Ill. App. 308), where it was reversed, and the cause remanded, on the merits. At the June term, 1897, of the circuit court, the cause was again tried, and again defendants in error obtained judgment, from which orders for appeal were taken by plaintiff in error, but not perfected. On September 8, 1897, plaintiff in error sued out a writ of error to remove the record to the appellate court, in which court defendants in error filed a plea of nul tiel corporation, to which a demurrer was interposed, overruled, and the writ of error dismissed, on the ground that the suing out of a writ of error was the commencement of a new suit, which, owing to the expiration of its charter, and of the two years thereafter provided by section 10 of chapter 32 of the Revised Statutes for the closing up of its business, that court held it could not bring. The plaintiff in error then prosecuted this writ of error, and, on filing the record in this court, a plea of nul tiel corporation was again interposed, which was stricken from the files, and thereafter a motion was made to reinstate it. The legality of that plea as a defense, on the above facts of record, is presented for our consideration.

The plaintiff in error contends that, it having been sued, and judgment having been rendered against it, as a corporation, the defendants in error are now estopped from setting up the defense stated in the plea; while the position of defendants in error is that the two years given plaintiff in error by the statute for the purpose of bringing suit, etc., to close up its business, beyond the limitation of its charter, having expired, this new suit by writ of error cannot be maintained,-in other words, that its corporate capacity to sue had ceased April 20, 1894. It is the established law of this state, as evidenced by a long line of decisions, that the suing out of a writ of error is the beginning of a new suit. Ripley v. Morris, 2 Gilm. 381; Bank v. Jenkins, 107 Ill. 291. The law is that the corporate capacity of a corporation to sue ceases on dissolution, except as such capacity is continued by statute, or its name is used in an equitable proceeding for the purpose of distributing its assets as a trust fund. Association v. Fassett, 102 Ill. 315.

The charter, or corporate existence, of this corporation, having expired April 20, 1892, section 10 of chapter 32 on ‘Corporations,’ provides that it and like corporations ‘shall continue their corporate capacity during the term of two years, for the sole purpose, only, of collecting the debts due to said corporation and selling and conveying the property and effects thereof.’ Section 11 provides that the corporate name may be used for such purpose, and that they shall be capable of prosecuting and defending all suits at law or equity, arising, as evidently intended, out of the execution of such sole purpose of collecting debts and selling and conveying the property and estate thereof. Section 12 is as follows: ‘The dissolution, for any cause whatever, of any corporation created as aforesaid, shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liabilities...