Territory ex rel. Blake v. Va. Rd. Co.

• Decision Date: 31 January 1874
• Citation: 2 Mont. 96
• Parties: TERRITORY ex rel. BLAKE, respondent, v. VIRGINIA ROAD Co., appellant.
• Court: Montana Supreme Court

2 Mont. 96

TERRITORY ex rel. BLAKE, respondent,

v.VIRGINIA ROAD Co., appellant.

Supreme Court of the Territory of Montana.

January Term, 1874.

Appeal from First District, Madison County.

THIS action was tried by a jury, and the judgment was rendered by SERVIS, J.

The act of incorporation of appellant is printed in Sts. 1865, 604. The provisions of the Civil Practice Act, approved December 23, 1867, which are referred to in the opinion, are contained in the Civil Practice Act, approved January 12, 1872.

J. G. SPRATT, TOOLE & TOOLE and PAGE & COLEMAN, for appellant.

The complaint does not state a cause of action. The complaint raises only one question, the existence of appellant as a corporation. It says the corporation has had no existence for three years, and prays that it may be brought into court and excluded from the use of privileges, which have not been used over three years. Respondent has mistaken his remedy. The action should be against the representatives of the dead corporation.

The persons assuming to be the corporation, when none exists, must be sued and not the corporate name. Dill. on Corp., § 719; King v. Cusacke, 2 Roll. 113; People v. Richardson, 4 Cow. 109. The complaint is in conflict with those authorities. Rex v. Saunders, 3 East, 119.

An information in the nature of quo warranto will not lie against a de facto corporation in its assumed corporate name. State v. Cincinnati G. Co., 18 Ohio St. 262; A. & A. on Corp. 865.

The complaint is defective in not alleging a total nonuser, and that the road was out of repair when the suit was brought. People v. Bank of Niagara, 6 Cow. 210;People v. Bank of Hudson, Id. 218;Commonwealth v. Ins. Co., 5 Mass. 230.

This proceeding is governed by our Civil Practice Act, the same as other civil actions.

The eighth section of the charter points out the remedy for acts of nonuser, and quo warranto to forfeit the corporation is not authorized. A. & A. on Corp., § 710.

The evidence does not justify the verdict. The allegations of the complaint are confined to nonfeasance. A single act of nonfeasance will not work a forfeiture of the charter, unless it is proved to be willful. People v. B. & R. Turnpike, 23 Wend. 222;Bank Com. v. Bank of Buffalo, 6 Paige, 497.

If the nonfeasance is not continued up to the commencement of the proceeding, or has ceased before that time, or is not an existing danger to the community, it is not a good cause of forfeiture.State v. Essex Bank, 8 Vt. 489;State v. Manchester Bank, 13 Sm. & Mar. 569; Carey v. Greene, 7 Ga. 79; A. & A. on Corp., § 775.

The testimony shows that the road in controversy was in good repair at the time this action was commenced and several months prior thereto. There was no evidence of any willful neglect on the part of appellant.

The proceeding in the nature of an action of quo warranto has ceased to be criminal. The common-law practice relating thereto has been repealed by our Code. 2 Bouv. L. Dict. 405; 1 Estee's Pl. 22, 207; Civ. Pr. Act, §§ 1, 47, 48, 49, 359.

S. WORD and H. N. BLAKE, District Attorney, First District, for respondent.

This action is brought under the fifth chapter of the Civil Practice Act. Stats. 1867, 197, §§ 310-316.

The complaint states facts sufficient to constitute a cause of action. People v. Richardson, 4 Cow. 106, 111;People v. Utica Ins. Co., 15 Johns. 362;People v. Kingston M. T. R. Co., 23 Wend. 194;People v. Bristol & R. T. Co., Id. 221;People v. Hillsdale & C. T. Co., Id. 253; Thompson v. People, Id. 537, 703;Commonwealth v. Tenth M. T. Co., 5 Cush. 509; A. & A. on Corp., §§ 756, 776; People v. Bank of Niagara, 6 Cow. 196.

The long-continued neglect of appellant to repair the road was a violation of the conditions of the charter and a cause of forfeiture. A. & A. on Corp., § 776; People v. Hillsdale & C. T. Co., 23 Wend. 253.

Appellant insists that this is an action against persons assuming to be a corporation. It is a proceeding against a corporation for usurping certain franchises, and must be brought against the corporation by its name. Charter of Appellant; A. & A. on Corp., §§ 643, 645; People v. Richardson, 4 Cow. 111.

The implied condition of a grant of incorporation is, that the grantees shall act up to the design and end for which they were incorporated. A. & A. on Corp., § 774; Terrett v. Taylor, 9 Cranch, 51;Dartmouth College v. Woodward, 4 Wheat. 658;People v. Manhattan Co., 9 Wend. 351.

The proceedings before the justice of the peace, specified in the eighth section of the charter, afford a cumulative remedy. The proceeding by information under the Civil Practice Act is not affected by this section. Cases in 23 Wend., supra.

The most that appellant can claim is that the evidence is conflicting. This court cannot disturb the verdict on this ground. Ming v. Truett, 1 Mon. 322;Kinna v. Horn, Id. 597.

WADE, C. J.

This is an action brought by the district attorney of the first district, upon information in the nature of a quo warranto, on behalf of the people of the Territory, against the defendant, to compel the defendant to show by what authority it claims to exercise the privileges and franchises of a corporation, and for judgment of forfeiture and ouster. There was a demurrer to the information or complaint, which was sustained in part and in part overruled, to which rulings of the court no exceptions were taken; the plaintiff not amending the pleading but abiding the same, and the defendant was ruled to answer. An issue was formed, trial had, verdict and judgment for plaintiff and appeal to this court.

The appellant now attacks the information or complaint for the reason that it does not state a cause of action; and no exceptions having been taken to the rulings of the court below upon the demurrer, and no question saved as to the sufficiency of the complaint, the inquiry is presented, whether or not the question can be raised in this court for the first time. No exceptions having been saved to the decision upon the demurrer, the complaint stands here precisely the same as if no demurrer had been filed; and we are called upon to determine whether this court can inquire as to the sufficiency of the complaint, the question not having been raised in the court below.

It is well settled that the averments of a pleading and the proofs must correspond, and it therefore follows that perfect proof cannot aid an imperfect averment, and a perfect averment is unavailing if supported by imperfect proof. If, in order to lay the foundation for recovery, the proof must go beyond the complaint, then the complaint is defective, and will not support the judgment. A judgment is the final determination of the rights of the parties, and must be supported by the pleadings and proofs. If there is a material defect or infirmity in either, the judgment cannot be sustained; and if the defect is in the pleading, the question can be raised at any time, either before or after judgment, or after appeal to this court. The lower courts have not jurisdiction to render judgment in the absence of a cause of action, and it would be equally erroneous for this court to affirm such a judgment. If there is a judgment for the plaintiff, and the complaint shows upon its face no cause of action, the appellate court will reverse the judgment. A judgment by default cannot be rendered upon a bad complaint, and if it is so rendered, upon appeal to this court it would be reversed, for the reason that here, as well as in every stage of the proceeding, the complaint must support the judgment. A bad complaint will not sustain a good judgment, and the question whether or not there is a cause of action alleged can be raised for the first time in this court, for here, as in every other court, the judgment must fail if the foundation upon which it stands is materially defective. Barron v. Frink, 30 Cal. 486;Hunt v. San Francisco, 11 Id. 258; 1 Chitty's Pl. 411; Barnes v. Hurd, 11 Mass. 59;Green v. Palmer, 15 Cal. 411;Abbe v. Marr, 14 Id. 211;Willson v. Cleaveland, 30 Id. 192.

The complaint substantially avers that the defendant, for the period of more than three years prior to the commencement of this action, had used, and still does use, the following liberties, privileges and franchises, to wit: That of being a body politic and corporate, by the name and style of the Virginia City and Summit City Wagon Road Company, and by such name to be capable of making contracts; to sue and be sued; to implead and be impleaded in courts of law and equity in this Territory; to have and use a common seal; to erect a toll-house and toll-gate on said road; to employ a toll-keeper to demand and receive tolls from all persons, wagons, horses, etc., passing over the same; to purchase and hold real and personal property, and sell and convey the same, and claims the franchise to maintain said road for the term of twelve years from and after January 27, 1865, and to collect toll on the same; that all said privileges, liberties and franchises the defendant, during all the time aforesaid, has usurped, and still does usurp, upon the said plaintiff; that said defendant claims to enjoy and use said franchises, liberties and privileges under and by virtue of an act of the legislative assembly of this Territory, entitled “An act to incorporate the Virginia City and Summit City Wagon Road Company,” approved January 27, 1865; that said claims of defendant are without warrant, grant or charter; that during the months of November and December, 1866, and January, February, March, April and May, 1867, said defendant did negligently fail to improve, complete and maintain said road, and keep the same in repair; that during said months the defendant abandoned said road, and the privileges, franchises and liberties, if any, acquired under and by virtue of said act of the legislative assembly; that said defendant negligently permitted said road to fall into such a state that it was rendered dangerous and inconvenient to travelers...