Vickers v. Company

• Decision Date: 07 January 1905
• Docket Number: 13,873
• Citation: 79 P. 160,70 Kan. 584
• Parties: C. C. VICKERS et al. v. THE BUCK STOVE AND RANGE COMPANY et al
• Court: Kansas Supreme Court

79 P. 160

70 Kan. 584

C. C. VICKERS et al. v. THE BUCK STOVE AND RANGE COMPANY et al

No. 13,873

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Morris district court; OSCAR L. MOORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN CORPORATIONS--Right to Sue--Practice. Where, in a suit by several foreign corporations to set aside an alleged fraudulent conveyance of lands, the defendants, before trial, file a motion to dismiss for the reason that the plaintiffs are doing business in this state without having complied with the provisions of chapter 10 of the Laws of 1893 and chapter 125 of the Laws of 1901 (Gen. Stat. 1901, § 1248 et seq.), and said defendants offer evidence in support of their motion, it is error for the court to refuse to hear the evidence, and, thereupon, to deny the motion.

2. PRACTICE, DISTRICT COURT--Findings by Court. Where a case is tried to a court without a jury and one of the parties requests the court to state its findings of fact separately from its conclusions of law, it is error for the court to refuse the request, or to refuse to make such separate findings so definite that the party may have a fair opportunity to except to the decision of the court upon the conclusions of law involved in the trial.

Charles B. Graves, and Allen & Allen, for plaintiffs in error.

Nicholson & Pirtle, for defendants in error.

CLARK A. SMITH, J. All the Justices concurring.

OPINION

CLARK A. SMITH, J.

This suit was begun in 1896 and is now brought to this court for review the third time. (Vickers v. Buck, 60 Kan. 598, 57 P. 517; Vickers v. Buck, 65 id. 97, 68 P. 1081.) The last trial resulted in a judgment for plaintiffs, and defendants bring error. It was an attempt to set aside a fraudulent conveyance.

The first error argued in the brief of plaintiffs in error is the denial of the motion for a change of venue. An application for a change of venue is addressed to the sound discretion of the trial court, and it is not shown that the court abused that discretion in this case.

Error is assigned upon the refusal of the court to hear evidence upon, and the dismissal of, the motion of defendants below to dismiss the case on the ground that plaintiffs were non-resident corporations doing business in the state of Kansas without having complied with the provisions of the statute authorizing them to maintain an action or to recover thereon in the courts of this state. The court refused to hear the evidence offered by the defendants in support of their motion. This was error. Section 3 of chapter 125, Laws of 1901 (Gen. Stat. 1901, § 1283), provides:

"No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made."

If the facts stated in the motion of the defendant to dismiss were true the plaintiffs were not entitled to maintain their suit, or to recover judgment, without having complied with the provisions of the act of 1901. The court sustained the objection to the introduction of any evidence under the motion, for the reason that this suit was commenced in the year 1896, before the passage of that act, or of the act of 1898, of which it is amendatory. It must be borne in mind that this was not an action to enforce a contract, but a suit sounding in tort. The design or effect of allowing the motion in question until the plaintiffs should have complied with the provisions of our statute relating to foreign corporations was not to impair the obligation of a contract. The act regulates the mode of procedure and protects the citizens of the state. The plaintiffs were not in a position to claim that they had a vested right to recover without having complied with the conditions imposed by the laws of the state, merely because they had commenced this suit before the enactment of the statute. The statute is not retroactive, as it applies to this case; it is prospective, and simply imposes upon such corporations proper regulations, in the interests of the citizens of the state, which they must observe before they will be allowed to maintain, and recover in, an action in this state. The court should hear the evidence, and, if the facts alleged in the motion be sustained by the evidence, it should give them a reasonable time in which to comply with the statute. Upon their refusal so to do it should dismiss the suit.

Plaintiffs in error complain of an alleged failure, or refusal, of the court to state its findings of fact and conclusions of law separately, as required by section 290 of the code of civil procedure (Gen. Stat. 1901 §...