The Buck Stove & Range Company v. Vickers

• Citation: 80 Kan. 29,101 P. 668
• Decision Date: 10 April 1909
• Docket Number: 15,964
• Court: United States State Supreme Court of Kansas
• Parties: THE BUCK STOVE & RANGE COMPANY et al. v. C. C. VICKERS et al. [*]

101 P. 668

80 Kan. 29

THE BUCK STOVE & RANGE COMPANY et al.
v.
C. C. VICKERS et al. ^[*]

No. 15,964

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Saline district court; ROLLIN R. REES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS--Foreign--Time to Procure a License--Stare Decisis. The decision. upon the last review of this case (Vickers v. Buck, 70 Kan. 584, 79 P. 160) that the plaintiff corporations should be allowed a reasonable time in which to comply with the statute relating to foreign corporations doing business in this state is the law of the case.

2. CORPORATIONS--Dissolution--Parties. A corporation which had been dissolved and was non-existent for several years before the trial could not maintain the suit. It had no successor, and its action was properly abated.

3. CORPORATIONS--Parties--Substitution--Laches. A corporation named as a plaintiff in the suit had assigned its entire cause of action to another corporation before the suit was commenced. The assignee made its first appearance in the action ten years after the assignment had been made and moved for substitution without any claim of mistake in commencing the suit in the wrong name. In the meantime the corporation in whose name the suit was instituted had been dissolved and ceased to exist. Held, that there was no error in denying the motion and abating the action.

4. CORPORATIONS--Parties--Substitution--Assignee. Another one of the plaintiffs was a foreign corporation doing business in this state without having complied with our statutes, and having no right to maintain a suit in the courts of this state. While this suit was pending this corporation was adjudicated a bankrupt and its cause of action was assigned by the trustee to another foreign corporation, which appeared in the action more than a year afterward and asked to be substituted in place of the bankrupt plaintiff. Held, that the assignee could acquire no better rights than the plaintiff had, and as the plaintiff had no right to maintain the suit it should be dismissed.

M. B. Nicholson, and W. J. Pirtle, for the plaintiffs in error.

S. H. Allen, Otis S. Allen, and George S. Allen, for the defendants in error.

OPINION

[80 Kan. 30] BENSON, J.:

These suits were commenced to set aside a conveyance on the ground of fraud. The proceedings upon three previous trials were considered in Vickers v. Buck, 60 Kan. 598, 65 Kan. 97, and 70 Kan. 584. All the plaintiffs are foreign corporations, and judgment creditors of C. C. Vickers. The court found that the conveyance of all the lands, except a homestead, was fraudulent, but refused to give judgment for any of the plaintiffs, for reasons now to be considered.

[80 Kan. 31] The defendants pleaded that the plaintiffs were doing business in this state without legal authority because they had not complied with the statutory requirements concerning foreign corporations, and that they had no legal capacity to maintain a suit in the courts of this state. (Laws 1898, ch. 10; Laws 1901, ch. 125.) They also pleaded a homestead exemption on one quarter-section of the lands in question. The court found upon the first of these issues as follows:

"The Samuel Cupples Woodenware Company, the St. Louis Refrigerator & Wooden Gutter Company, the St. Louis Glass & Queensware Company [and the Buck Stove & Range Company], have each of them, ever since 1901, been sending traveling salesmen into this state, who took orders from citizens of Kansas dealing in their products, and sent them to their respective houses at St. Louis. If the orders were approved at headquarters, the goods were shipped to the customers in Kansas, and were paid for by them by remitting directly to the sellers at St. Louis."

The court concluded that the corporations named in this finding had no right to maintain the suit until they complied with the statutes relating to foreign corporations doing business in this state, that they should have a reasonable time to do so, and allowed them five months for that purpose and continued the cause until the next term without entering judgment on the findings. At the expiration of this period the corporations which were given this opportunity filed their written statement respectfully declining so to comply with the laws of this state, and protesting against the dismissal of their suits for their failure to do so, giving as their reasons that they were engaged exclusively in interstate commerce; that the court had no power to impose such conditions upon them; that such conditions were in violation of the constitution and laws of the United States relating to interstate commerce; that their right to maintain the suits originated in interstate commerce between Vickers, residing in Texas, and citizens of states other than Kansas, and before [80 Kan. 32] the passage of these statutes; and that chapter 125 of the Laws of 1901 was void as contravening the [101 P. 669] commerce clause of the federal constitution. They also moved for judgment on the findings upon substantially the same ground. Upon consideration of this declination and motion the court, when the case was called for final judgment, dismissed the suits as to the corporations named, at their costs.

The court found that the Consolidated Steel & Wire Company had formerly transacted business in the same manner as the other corporations, but that it went out of business in 1901, and had not carried on any business anywhere since then. On the hearing of motions for a new trial and for judgment the defendants suggested that this corporation had been dissolved in November, 1899. The court upon competent evidence then made the further finding "that since the findings of fact were rendered in this case it has been suggested to the court and shown by legal proofs duly made herein that the Consolidated Steel & Wire Company has ceased...