The Life Ass'n of Am. v. Fassett

• Decision Date: 28 March 1882
• Citation: 1882 WL 10228,102 Ill. 315
• Parties: THE LIFE ASSOCIATION OF AMERICAv.ALFRED K. FASSETT.
• Court: Illinois Supreme Court

102 Ill. 315

1882 WL 10228 (Ill.)

THE LIFE ASSOCIATION OF AMERICA

v.ALFRED K. FASSETT.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. CARR & REYNOLDS, for the plaintiff in error:

Every person contracts with a corporation with full knowledge that the State under whose authority it was created may arrest its franchises, and dissolve it, and wind up its affairs. Mumma v. Potomac Co. 8 Peters, 281; Rorer on Inter-State Law, 78; Thompson on Stockholders' Liability, sec. 3.

The dissolution of a corporation, as provided by the laws of the State creating it, operates as its legal death in every other State in which it may be doing business. Farmers and Mechanics' Bank v. Little, 8 Watts & Serg. 207; Relfo v. Reindle, 103 U. S. 222.

A court has no authority to render judgment against a natural person after his death. Vaughan v. Sturtevant, 7 T. R. 372.

Judgment against a corporation after its dissolution is suggested of record, without reviving against its representatives, is not only erroneous, but absolutely void. Thompson on Stockholders' Liability, sec. 335; Scanlon v. Crawshaw, 5 Mo. App. 337; National Bank v. Colby, 21 Wall. 609; Greeley v. Smith, 3 Story, 657; Merrill v. Suffolk Bank, 31 Me. 62; Ingraham v. Terry, 11 Humph. 574; Saltmarsh v. Planters and Merchants' Bank of Mobile, 17 Ala. 761; McCullough v. Norwood, 58 N. Y. 562; Wilson v. Terson, 12 Ind. 285; Bank of Mississippi v. Wram, 3 S. & M. 790; People v. Walker, 17 N. Y. 502; Lagrange & M. R. R. Co. v. Rainey, 7 Cold. 420.

While the legislature may prescribe the terms on which foreign corporations may do business here, it can not authorize the courts to prolong their existence, after their dissolution by a decree of the court of the State of their creation. Farmers and Mechanics' Bank v. Little, 8 Watts & Serg. 277; Booker v. Hall, 60 Maine, 172; Ordway v. Bank, 47 Md. 217. Mr. C. L. CONKLING, for the defendant in error:

A writ of error being a new suit, if the corporation is dead it could not sue or be sued, and this writ of error should abate. Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 Id. 20; Roberts et al v. Fahs et al. 32 Ill. 474; Orr v. Thompson, 4 Gilm. 451; 1 Chitty's Pleadings, 1, 2, 3, 12; Larned v. Carpenter, 65 Ill. 543.

A person who assumes a name which imports a corporate existence, and by it exercises corporate powers, is estopped from denying the existence of the corporation. United States Express Co. v. Bedbury, 34 Ill. 459.

The question of the dissolution of a corporation, and the effect thereof, should be raised by plea in abatement. A corporation is unlike a natural person, and a mere suggestion of its dissolution does not raise a presumption that it can not be sued. In re Independent Ins. Co. 1 Holmes, 104; Holloway et al. v. Freeman, 22 Ill. 201; Express Co. v. Haggard, 37 Ill. 465; Hurd's Stat. 1877, ch. 1, sec. 1.

Even if the suggestion is to be treated as a plea in abatement, it was properly stricken from the files, because not verified. Fowler v. Arnold, 25 Ill. 284.

Proceedings by attachment do not abate by the death of the defendant. Hurd's Stat. 1877, ch. 3, sec. 11, ch. 1, sec. 13; Davis et al. v. Shapleigh et al. 19 Ill. 386; Rauh v. Reitchie, 1 Bradw. 191.

Foreign corporations are non-residents, and their property is subject to attachment, like that of natural persons. Mineral Point R. R. Co. v. Keep, 22 Ill. 9; Drake on Attachments, (4th ed.) sec. 70; Hurd's Stat. 1877, ch. 131, sec. 1, sub. 5.

One seeking to defeat an attachment on the ground the defendant corporation is dissolved, and that he, as receiver, is its sole representative, and entitled to the possession of its property, should interplead. Hurd's Stat. 1877, ch. 11, sec. 29; City Ins. Co. v. Commercial Bank, 68 Ill. 348. The decree of the Missouri court, although using the word “dissolve,” does not operate as an absolute dissolution of the corporation, but keeps it alive for certain purposes. Suits may still be prosecuted or defended in the corporate name after dissolution of the corporation. Hurd's Stat. 1877, ch. 73, sec. 107; Ramsey v. P. M. & F. Ins. Co. 55 Ill. 311.

The tendency of modern decisions is to treat corporations once existing as continuing to exist, for the purpose of suing and being sued, in winding up their affairs. And courts of foreign States will, upon the slightest opportunity, keep them alive for such purposes. Pomeroy v. Bank, 1 Wall. 23; Shackleford v. Railroad Co. 52 Miss. 159; City Ins. Co. v. Commercial Bank, 68 Ill. 348.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Alfred K. Fassett, a creditor of the Life Association of America, a corporation organized under the laws of, and having its principal office and place of business in, the State of Missouri, on the 15th of October, 1879, sued an attachment out of the circuit court of Sangamon county, and caused the same to be levied upon certain lands belonging to the company in this State, where it had lately been doing an insurance business. Subsequently, on the 18th of the same month, by a decree of the circuit court of the city of St. Louis, on the petition of William S. Relfe, superintendent of the Insurance Department of the State of Missouri, the Life Association of America was declared insolvent, and dissolved, and by virtue of the proceedings there had, all its assets and property, of every kind and description, were turned over to, and by the decree declared to be vested absolutely in, the said William S. Relfe, as the receiver and successor of the company. Subsequently, on the 20th of February, 1880, the said Relfe, in his character of superintendent, by leave of the court, entered a special appearance in the attachment proceeding commenced by Fassett against the company, for the purpose of filing a written suggestion of the dissolution of the company under the legal proceedings in Missouri, as above stated. Fassett, by his counsel, entered a formal motion to strike the suggestion from the files, on the hearing of which Relfe offered in evidence the record of the proceedings in the St. Louis circuit court, limiting his appearance for that purpose only. Upon consideration of the matter the circuit court entered an order striking the suggestion from the files, to reverse which order Relfe removed the cause to the Appellate Court for the Third District, where the same was affirmed, and Relfe now brings the record to this court, by writ of error, for review, and assigns for error the affirming of the order of the circuit court sustaining the motion to strike the suggestion from the files.

Whether Relfe, as superintendent of the Insurance Department of Missouri, under the circumstances stated, is entitled to the property, and to administer the same under the laws of Missouri, is not directly presented by this record. Under our statute it would have been perfectly competent for him to have entered an appearance, and by interpleader submitted his rights in the attached estate to the consideration and judgment of the court. This, however, he very carefully and studiously avoided. We are not aware of any rule of law or practice that warrants the filing of such a suggestion under the circumstances stated, unless it be assumed that our Statute of Abatement applies to corporations as well as individuals. It is well understood, in the construction of statutes, the word “person” or “persons” is often held to include corporations. Indeed, by the 5th clause of section 1, of chap. 131, Rev. Stat. entitled “Statutes,” it is expressly provided that “the word “person' or “persons,' as well as all words referring to or importing persons, may extend to and be applied to bodies politic and corporate as well as individuals,” and the position that the several provisions of the Abatement act relating to the death of parties were intended to apply to a dissolved corporation which has a legal successor, is not without force. But whether this be so or not, and about which we express no opinion, we are clear there is nothing in the Abatement act that warranted the course taken by Relfe to raise the question of the dissolution of the company. The 11th section of that act provides, in substance, that where a sole defendant in any action dies before final judgment, such action shall not on that account abate, if it might originally have been prosecuted against his legal representatives, but in such case “the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative,” etc.

There is clearly nothing in this provision that authorizes the representative of a deceased defendant to intrude himself into a case for the purpose of making such a suggestion, unless it is done to make himself a party to the suit for the purposes of defence, or other legitimate object. To avail himself of the statute he must submit himself unreservedly to the jurisdiction of the court. The object of the statute was to provide a cheap and expeditious mode by which the legal representatives of a deceased party to a suit may be substituted for the deceased. The representatives of a deceased defendant are not bound to make such application. They may or may not, just as they please; but if they elect to do so, they must be substituted for all purposes. On the other hand, if they omit or decline to make application to be thus substituted, they are not to be prejudiced by it. If the plaintiff proceed and take judgment against a deceased defendant without making his legal representatives parties, he does so at his peril. As to his legal representatives, it will be time enough for them to interpose when it is sought to enforce the judgment. Not having been made parties to it, they are not...