State v. Missouri Exploration & Land Co.

• Decision Date: 09 December 1902
• Citation: 97 Mo. App. 226,70 S.W. 1107
• Parties: STATE ex rel. FOLK, Circuit Attorney, v. MISSOURI EXPLORATION & LAND CO.
• Court: Missouri Court of Appeals

70 S.W. 1107

97 Mo. App. 226

STATE ex rel. FOLK, Circuit Attorney, v. MISSOURI EXPLORATION & LAND CO.

Court of Appeals at St. Louis, Missouri.

December 9, 1902.

CORPORATIONS — REPORTS — FAILURE TO FILE — PENALTY — ACTIONS — PARTIES — DEFECTS — WAIVER — DEFENSES — DELINQUENCY — NOTIFICATION TO OFFICER — BLANKS — FAILURE TO FURNISH — PLEADING.

1. A proceeding to recover a penalty against a corporation for failure to file a report with the secretary of state as required by Rev. St. 1899, § 1013, should be brought in the name of the state on relation of a city, where the corporation is located therein, and not on relation of the circuit attorney whose duty it is to prosecute the proceeding.

2. Where an action was brought against a corporation to recover the penalty for failure to file its annual report with the secretary of

state as provided by Rev. St. 1899, §§ 1013, 1017, on relation of the circuit attorney, instead of on relation of the city within which the corporation was located, as required by section 1021, such defect was waived by the corporation's failure to object thereto either by demurrer or answer.

3. Since the cause of action against a corporation for failure to file its annual report with the secretary of state as required by Rev. St. 1899, § 1013, accrues on the 1st day of September after the report falls due, as provided by section 1017, and not on notification of the company's default to the prosecuting officer by the secretary of state, the latter's failure to notify the prosecuting officer of defendant's delinquency was no defense to an action against it to recover the penalty.

4. Under Rev. St. 1899, § 1015, providing that no corporation required by statute to furnish reports to the secretary of state shall be excused by reason of its failure to receive blanks required to be supplied by the secretary of state, a petition in an action to recover the penalty provided by section 1017 for failure to make such report need not allege that blanks had been mailed to the corporation therefor.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by the state of Missouri, on the relation of Joseph W. Folk, circuit attorney of the Eighth judicial circuit, against the Missouri Exploration & Land Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Edward D'Arcy, for appellant. Joseph W. Folk, for respondent.

GOODE, J.

This is an action to recover a penalty, under section 1017, Rev. St. 1899, for failure of the defendant to make report to the secretary of state for the year 1901, as provided in section 1013 of the statutes. The petition is as follows: "State of Missouri. City of St. Louis — ss.: In the Circuit Court, City of St. Louis, February Term, 1902. The State of Missouri, ex rel. Joseph W. Folk, Circuit Attorney of the Eighth Judicial Circuit, Plaintiff, v. Missouri Exploration and Land Company (a Corporation), Defendant. Plaintiff states that on the 1st day of June. A. D. 1901, and from that date up to the present time, defendant was, and still is, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri; and plaintiff states that, at the times mentioned, defendant was, and now is, a corporation whose stock is divided into shares, and that it was not and is not a railroad, building and loan, or insurance company, nor a corporation exempted from taxation by the laws of this state. Plaintiff complains of defendant herein, and, for cause of action, states that defendant failed to report to the secretary of state of the state of Missouri on the 1st day of July, A. D. 1901, or within sixty days thereafter, the location of its principal business office, the name of its president and secretary, the amount of its...