State v. Chi., M. & St. P. R. Co.

• Decision Date: 01 November 1893
• Citation: 56 N.W. 894,4 S.D. 261
• Court: South Dakota Supreme Court
• Parties: STATE v. CHICAGO, M. & ST. P. R. CO.

4 S.D. 261

56 N.W. 894

STATE

v.CHICAGO, M. & ST. P. R. CO.

Supreme Court of South Dakota.

Nov. 1, 1893.

Syllabus by the Court.

1. When the defendant is sued by a name indicating that it is not a natural person, but a company of some kind, the complaint must state that it is a corporation, or state facts showing that it is an artificial being, capable of being sued.

2. Section 2908, Comp. Laws, which provides that, “in all civil actions brought by or against a corporation, it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendant shall in his answer expressly aver that the plaintiff or defendant is not a corporation,” does not relieve the plaintiff from the necessity of alleging in his complaint that the defendant is a corporation.

3. The failure to allege in the complaint that the defendant is a corporation may be taken advantage of on demurrer, under subdivision 6, § 4909, Comp. Laws, stating as ground of demurrer “that the complaint does not state facts sufficient to constitute a cause of action.”

Appeal from circuit court, Minnehaha county; Frank R. Aiken, Judge.

Action by the state of South Dakota against the Chicago, Milwaukee & St. Paul Railroad Company to restrain a nuisance. There was judgment sustaining a demurrer to the complaint, and plaintiff appeals. Affirmed.Robert Dollard, Atty. Gen., for the State. Winsor & Kittredge, for respondent.

CORSON, J.

This was an action by the state to enjoin the defendant from continuing an alleged nuisance. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the same was sustained by the court. From the order sustaining the demurrer, the plaintiff appeals. The defendant specifies as the particular ground of objection, in the brief filed in this court, that there is no allegation in the complaint that the defendant is a corporation. The only indication of the character in which the defendant is sued is in the title. The learned counsel for the respondent contend that the defendant is sued by a name indicating that it is not a natural person, but a company of some kind, and that no facts are stated to show that it is an artificial being, capable of being sued.

It is true that by section 2908, Comp. Laws, it is provided that, “in all civil actions brought by or against a corporation, it shall not be necessary to prove on the trial of the cause, the existence of such corporation, unless the defendant shall, in the answer expressly aver that the plaintiff or defendant is not a corporation.” But an allegation that the defendant is a corporation is, we think, still necessary, and the language of the section presupposes that the defendant is sued as a corporation. In what manner can a court be advised that the defendant is sued as a corporation, unless it is so alleged in the complaint? In the recent case of People v. Central Pac. R. Co., 83 Cal. 393, 23 Pac. Rep. 303, (decided in 1890,) the supreme court of that state, in passing upon this question, says: “The defendant is sued by a name indicating that it is not a natural person,but a company of some kind; but there is no averment of the fact of incorporation, or of any fact to show that it is an artificial being, capable of being sued. Nor, if incorporated, is there any averment to show where, or under what law, so that the court may determine where the jurisdiction of its person lies. An averment of defendant's corporate existence is necessary in every count of a complaint against a corporation. Loup v. Railroad Co., 63 Cal. 99.” Mechanics' Banking Ass'n v. Spring Valley Shot & Lead Co., 13 How. Pr. 227. Judge Bliss, in his work on Code Pleading, (section 258,) says: “But a corporation is an artificial personality, not presumed to exist, even; and the phrase may stand for such personality, or for a joint-stock company, or for a partnership, or for...