State v. S. P. Pond Co.

• Decision Date: 11 January 1909
• Citation: 135 Mo. App. 81,115 S.W. 505
• Parties: STATE ex rel. NELSON v. S. P. POND CO.
• Court: Missouri Court of Appeals

115 S.W. 505

135 Mo. App. 81

STATE ex rel. NELSON v. S. P. POND CO.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

Rehearing Denied February 1, 1909.

1. CORPORATIONS (§ 652)—FAILURE TO FILE CHARTER—PROSECUTION—DEFENSES.

A foreign corporation which did business in the state without filing a copy of its charter, etc., with the Secretary of State, as required by Rev. St. 1899, § 1025 (Ann. St. 1906, p. 888), was guilty of a violation of the section and liable to a fine, though thereafter and before prosecution was commenced it filed such copy.

2. CRIMINAL LAW (§ 1030)—APPEAL AND ERROR—DEFENSES NOT PLEADED.

A defense not pleaded or in any way interposed in the case cannot on appeal be invoked to disturb the judgment.

Appeal from Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by the State, on the relation of Earl F. Nelson, against the S. P. Pond Company. From a judgment imposing a fine, defendant appeals. Affirmed.

W. J. Roberts and Calfee & Eubanks, for appellant. Earl F. Nelson, for respondent.

ELLISON, J.

The defendant is a corporation organized under the laws of Iowa. It was charged by the prosecuting attorney of Sullivan county with violating section 1025, Rev. St. 1899 (Ann. St. 1906, p. 888), in not having filed with the Secretary of State a copy of its charter, etc., as prescribed by that section; and it was alleged that by reason of such violation of the statute it became "subject to a fine of not less than $1,000," as provided by section 1026 of such statute (Ann. St. 1906, p. 890). The state's complaint was filed November 27, 1907. A fine in the amount of $1,000 was assessed against defendant by the trial court, and it thereupon appealed.

A demurrer to the complaint filed by the state was overruled, and defendant thereupon filed its answer. The prosecuting attorney then demurred to the answer, and it was sustained by the court. The defendant stood upon the answer, and the court then assessed the fine.

The answer admitted that defendant was a corporation organized in Iowa, "and that on the 1st day of June, 1907, and continuously from that date until the 29th of July, 1907, it was doing business as a corporation for purposes of gain in Sullivan county, Mo." The business admitted was buying, and preparing for market, farm products, and shipping them to persons without the state of Missouri,—all sales being made in Iowa; and that it did this without complying with the statute to which we have referred. But the answer further averred that long prior to the beginning of this prosecution, and ever since its beginning, it had maintained a public office in Sullivan county, Mo., for the transaction of its business, and that on the 22d of July, 1907, it complied with the statute by making the proper statements and filing them with the Secretary of State, and that on the 29th of that month the Secretary issued to it a license as required by that statute, whereby it was licensed to engage "in the business of buying, preparing for market as food, and selling, farm products, with all the powers convenient for the purpose which is authorized by its charter."

It will be observed that the defendant's answer admits it to be an Iowa corporation which did business in this state during the month of June and part of July, 1907, without depositing the proper papers with the Secretary of State and taking out a certificate of authority as required by section 1025. On the face of such statement the defendant would, of course, be liable to the penalty prescribed by section 1026. But it seeks to avoid such conclusion by the fact that before the beginning of this prosecution, which, as already stated, was not until November 27th, it complied with the statute and received a...