Thompson v. Scroyer

• Decision Date: 03 October 1905
• Citation: 20 S.D. 72,104 N.W. 854
• Court: South Dakota Supreme Court
• Parties: THOMPSON & JUVE v. SCROYER (KELLOG-MACKAY-CAMERON CO., Intervener).

20 S.D. 72

104 N.W. 854

THOMPSON & JUVE

v.SCROYER (KELLOG-MACKAY-CAMERON CO., Intervener).

Supreme Court of South Dakota.

Oct. 3, 1905.

Appeal from Circuit Court, Minnehaha County.

Action by Thompson & Juve, a firm composed of Anton Thompson and another, against Charles T. Scroyer, in which the Kellog-Mackay-Cameron Company intervened. From a judgment in favor of the intervener, plaintiff appeals. Reversed.Joe Kirby, for appellant. H. H. Keith and Albert J. Keith, for respondent.

CORSON, J.

This is an action by the plaintiffs to recover from the defendant the sum of $358, claimed to be due them from the defendant for the installation of a steam-heating plant erected by them for the defendant. The respondent the Kellog-Mackay-Cameron Company, filed a complaint in intervention, claiming that the heating plant was furnished by it, that it retained title thereto and had filed a mechanic's lien against the premises of the defendant for the value of the same, and demanded that it be adjudged to be the owner of the plant or for the value thereof. The plaintiffs in their answer to said complaint in intervention, among other things, alleged that the said intervener was a corporation organized and existing under the laws of the state of Illinois, and that such corporation had not filed in the office of the Secretary of State of South Dakota an authenticated copy of its charter or articles of incorporation, and had not complied with the provisions of the laws of this state in relation to foreign corporations, and had not appointed a resident agent of the intervener in this state.

The record discloses the following stipulation: “It was agreed on the trial that the intervener was a foreign corporation and has never complied with the laws of the state of South Dakota regarding foreign corporations, nor has it ever appointed a resident agent for the state of South Dakota.” At the conclusion of the plaintiffs' evidence the plaintiffs moved “that the court strike out the complaint in intervention on the part of the Kellog-Mackay-Cameron Company, for the reason that it is stipulated and it appears of record that said intervener is a foreign corporation and never had complied with the laws of the state of South Dakota in relation to foreign corporations.” This motion was overruled, and the plaintiffs excepted. Subsequently the defendant moved the court to instruct the jury to return a verdict in his favor and against the plaintiffs, which motion was...