State v. Colias

• Decision Date: 02 March 1907
• Citation: State v. Colias, 150 Ala. 515, 43 So. 190 (Ala. 1907)
• Parties: STATE EX REL. THOMPSON v. COLIAS ET AL.
• Court: Alabama Supreme Court

43 So. 190

150 Ala. 515

STATE EX REL. THOMPSON v. COLIAS ET AL.

Supreme Court of Alabama

March 2, 1907

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Quo warranto by the state, on the relation of Von L. Thompson against Thomas Colias and others. From a judgment sustaining defendants' demurrer to the petition and dismissing the petition, relator appeals. Affirmed.

This was a petition in the nature of a quo warranto, seeking to prevent the stockholders of the alleged corporation from further using, usurping, or attempting to use and usurp, the privileges and franchises granted said alleged corporation as granted by said alleged articles of incorporation. The material allegations of the petition seeking to annul the corporation are sufficiently stated in the opinion of the court, and a judgment sustaining demurrers and dismissing the petition was entered, and from this judgment this appeal is prosecuted.

Von L Thompson, in pro. per. Powell & Blackburn, for appellees.

DENSON J.

Nicholas Colias and Christo Jebeles, during the year 1900 and for some time prior thereto, did a general mercantile business in the city of Birmingham as partners under the firm name and style of "Jebeles & Colias." The petition shows that on the 4th day of December, 1900, while they were doing business under said firm name, they, together with one S. Gianoakos filed their application in writing in the office of the probate judge of Jefferson county, praying to be incorporated under the name of "Jebeles & Colias Company." On the 6th of December, 1900, the probate judge issued a certificate of incorporation in which it was recited that upon the written application of the parties above named they had been incorporated under the name and style of "Jebeles & Colias Company." Section 1286 of the Code of 1896 is in this language: "No certificate of incorporation shall issue to any corporation under the same corporate name as that already assumed by another corporation of the state unless it be the successor of such other corporation; nor when the corporate name assumed is that of a person or firm, unless there be joined thereto some word designating the business to be carried on, followed by the word 'company' or 'corporation.' If any corporation shall hereinafter assume as its corporate name, the name of a person or firm without the qualification above required in such case, the organization of such corporation is void, and the stockholders are liable as partners."

It will be observed that the certificate of incorporation, when compared with the statute, is defective in failing to use some word, before the word "Company," designating the business to be carried on. Section 1282 of the Code of 1896 is in this language: "When any private corporation heretofore or hereinafter created under the laws of this state, has accidently or inadvertently failed to comply with the requisitions of the statute in its organization, it shall be lawful for the president of such corporation to supply such omission by filing with the probate judge who issued the certificate of incorporation, a statement, under oath, setting forth such omission and supplying the same, which shall be filed with the other papers of such corporation and recorded. And such filing shall relate back to the date of such incorporation, except as to the rights of third parties which may have intervened." It is shown by the application of the relator that on the 4th day of December, 1902, a statement in all respects in compliance with section 1282 was filed in the office of the judge of probate of Jefferson county, in which it was shown that the incorporators had by accident, mistake, or inadvertence omitted to join with the name "Jebeles & Colias" any word designating the business to be carried on, and it is asked in the "statement" that the omission may be supplied by inserting the word "Confectionery" immediately after the words "Jebeles & Colias," and before the word "company," wherever the name of the corporation appears in the declaration papers. With the word supplied, the name of the corporation reads as follows: "Jebeles & Colias Confectionery Company." The statement, as shown by the application of the relator, was filed with the other papers of the incorporation and was recorded. Code 1896, § 1282.

The insistence of the relator is that the initial effort to...