Work v. United Globe Mines

• Decision Date: 20 March 1909
• Docket Number: Civil 1009
• Citation: 100 P. 813,12 Ariz. 339
• Parties: JAMES H. WORK, Plaintiff and Appellant, v. THE UNITED GLOBE MINES, a Corporation, Defendant and Appellee
• Court: Arizona Supreme Court

100 P. 813

12 Ariz. 339

JAMES H. WORK, Plaintiff and Appellant, v. THE UNITED GLOBE MINES, a Corporation, Defendant and Appellee

Civil No. 1009

Supreme Court of Arizona

March 20, 1909

ERROR from a judgment of the District Court of the Fifth Judicial District, in and for the county of Gila. Frederick S. Nave Judge. Affirmed.

The facts are stated in the opinion.

Francis M. Hartman, Frank Cox, and Alfred Franklin, for Plaintiff in Error.

In order to entitle the defendant to the benefits of paragraphs 2937 and 2938, it was necessary for it to especially plead this statute, as it applies to a particular class of cases. 13 Ency. of Pl. & Pr., p. 222. The plaintiff being absent from the Territory of Arizona, the statute of limitations of this Territory did not run against him, and his cause of action was not barred. Huff v. Crawford, 88 Tex 368, 53 Am. St. Rep. 763, 30 S.W. 546, 31 S.W. 614, 32 S.W 592. "Upon appeal from a judgment in an action tried by the court without a jury, where the transcript contains no findings of fact, and such findings do not appear to have been waived in the court below, the judgment must be reversed." Bates v. Bower, 17 Mo. 550; Derrick v. Jewett, 21 Mo. 444; Dillon Implement Co. v. Cleaveland, 32 Utah 1, 88 P. 670. "A foreign corporation is a person out of the state within the meaning of the statute, and cannot avail itself of the statute of limitations." Larson v. Aultman & Co., 86 Wis 281, 39 Am. St. Rep. 893, 56 N.W. 915; Williams v. Metropolitan Co., 68 Kan. 17, 104 Am. St. Rep. 377, 74 P. 600, 64 L.R.A. 794, 1 Ann. Cas. 6; State v. Nat. Acc. Soc. of New York, 103 Wis. 208, 79 N.W. 223; Robinson v. Imperial Silver Min. Co., 5 Nev. 43, 10 Morr. Min. Rep. 370; State v. Central Pac. R.R. Co., 10 Nev. 47; Barstow v. Union Con. Silver Min. Co., 10 Nev. 386; Olcott v. Tioga R.R. Co., 20 N.Y. 210, 75 Am. Dec. 393.

Herring, Sorin & Ellinwood, for Defendant in Error.

While plaintiff has an opportunity to procure service of process on a foreign corporation, it cannot be said that the corporation is beyond the limits of the state, and it may avail itself of the statute of limitations and acquire title by adverse possession. Sidway v. Missouri Ld. & Livestock Co., 187 Mo. 649, 86 S.W. 156; Thompson v. Texas L. & C. Co. (Tex. Civ. App.), 24 S.W. 856; Southern Ry. Co. v. Mayes, 113 F. 84, 51 C.C.A. 70; Mehrenberg v. New York N.H. & H.R. Co., 124 A.D. 205, 108 N.Y.S. 704; U.S. Express Co. v. Ware, 20 Wall. 543, 22 L.Ed. 422; McCabe v. Illinois Cent. Ry. Co., 13 F. 827, 4 McCrary, 492; Turcott v. Yazoo & M.V.R. Co., 101 Tenn. 102, 45 S.W. 1067, 40 L.R.A. 768; O'Connor v. Aetna Life Ins. Co., 67 Neb. 122, 93 N.W. 137, 99 N.W. 845. "The defendant is actually in this state, engaged in business, and for such purposes must be regarded as a resident of this state, for the simple reason that process can be served on it, and it can be made amenable in the courts of this state." Wall v. Chicago & N.W.R. Co., 69 Iowa 498, 29 N.W. 427.

It is no objection that a new statute of limitation affects rights of action accrued at the time of its passage, providing a reasonable time is given for the commencement of an action before the bar takes effect. Bigelow v. Bemis, 2 Allen (Mass.), 496; Smith v. Morrison, 22 Pick. 432; Koshkonong v. Burton, 104 U.S. 668, 26 L.Ed. 886, and cases cited. According to the weight of authority, the period between the passage of the act and its going into effect may be considered in determining the question of reasonable time. Lewis' Sutherland on Statutory Construction, sec. 707, and notes.

By submitting the case to the court upon the agreed statement of facts, the parties are held to waive all defects of pleading, and the cause will be determined strictly upon the merits. Hess v. Bollinger, 48 Cal. 349; Miner v. Coburn, 4 Allen (Mass.), 136; Reynolds v. Reynolds, 30 Kan. 95, 1 P. 388; 1 Ency. of Pl. & Pr. 391, and cases cited.

OPINION

SLOAN, J.

-- The questions raised by counsel for plaintiff in error on the record are such as do not require any general statement of facts, and can be conveniently disposed of by stating them in the form of interrogatories embracing the essential facts of the record upon which they are based.

1. In a suit to quiet title to patented mining claims brought under chapter 1, title 71, Civil Code of 1901, is a cross-complaint, setting up title by adverse possession for the statutory period and praying for the quieting of such title as against plaintiff, a proper pleading under our statutes?

It is contended by counsel for plaintiff in error that adverse possession for the statutory period does not confer title so as to permit one to maintain an action to quiet title based upon such adverse possession. The argument is that under paragraph 2942, Civil Code of 1901, title by adverse possession is only available in suits which have for their direct and immediate object the recovery of the possession of real property, and that, an action to quiet title under our statutes not being one brought directly and immediately for the recovery of the possession of real property, title by adverse possession may be neither pleaded as a defense to such action, nor can it form a basis for affirmative relief by way of cross-complaint. Said paragraph reads as follows: "Whenever in any case the action of a person for the recovery of real property is barred by any of the provisions of this title the person who pleads and is entitled to the bar shall be held to have full title precluding all claims." The construction of this statute in its effect upon actions to quiet title is not now in this territory an open question. The above paragraph, together with the body of our statutes of limitations, was adopted from the statutes of the state of Texas. The supreme court of that state, in Moody v. Holcomb, 26 Tex. 714, held that adverse possession of lands for the statutory period confers title thereto which may be quieted in an action brought for that purpose by the party asserting such title. This decision was rendered prior to the adoption of the statute by this territory and after its enactment by the legislature of the state of Texas. This court, in the case of Pacheco v. Wilson, 2 Ariz. 411, 18 P. 597, has held that title by adverse possession is sufficient title to maintain a complaint to quiet title. This decision was rendered in June, 1888, nearly a year after the statutes of 1887, including the paragraph in question, took effect. The supreme court of the United States, in a number of decisions, beginning with Jackson ex dem. Bradstreet v. Huntington, 5 Pet. 402, 8 L.Ed. 170, has held that adverse possession for the statutory period confers title which may be asserted either in law or in equity and in any form of action. Sharon v. Tucker, 144 U.S. 533, 12 S.Ct. 720, 36 L.Ed. 532; Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483.

2. May a foreign corporation, which has complied with all the requirements of our statutes governing such corporations doing business in the Territory, and which has its principal place of business within the Territory, acquire title to realty by adverse possession for the statutory period?

There is some conflict of authority upon this point. The supreme courts of the states of New York and Nevada have held, under statutes somewhat akin to ours, though not so full and explicit in granting privileges of citizenship to such corporations, that it may not. Missouri, Nebraska, Iowa, and Minnesota hold to the contrary under similar statutes and for reasons which seem especially applicable to foreign corporations doing business within the territory under the permission granted by the statute. These reasons are that the purpose of statutes of limitations, in allowing specified times for commencing actions and in making exceptions to the running of such times, is a practical one and that is to give to any plaintiff a reasonable opportunity to seek his remedy; and that a mere theoretical absence from the state, as in the case of a foreign corporation having a duly appointed agent upon whom service may be had within the jurisdiction, not preventing the bringing of suit and the obtaining of service against the absentee, does not prevent in any way the bringing of the action, and should not therefore come within the exception common to statute of limitations that, where the defendant be out of the state when the cause of action accrues, the limitation does not begin to run until his return, or if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is not to be included within the time limited for the commencement of the action. St. Paul v. Chicago etc. R. Co., 45 Minn. 387, 48 N.W. 17; Sidway v. Missouri L.L. Stock Co., 187 Mo. 649, 86 S.W. 156; O'Connor v. Aetna Life Insurance Co., 67 Neb. 122, 93 N.W. 137, 99 N.W. 845; Wall v. Chicago & N.W. Ry. Co., 69 Iowa 498, 29 N.W. 427. The existing statute upon the rights of foreign corporations who may have complied with the law relating thereto is so comprehensive as to leave no doubt as to the legislative intent to give such corporations all the rights of property possessed by domestic corporations, except where specifically limited in the amount of land which they may hold. Paragraph 913, Civil Code of 1901, reads: "Upon complying with the provisions of this chapter any association, company or corporation organized or incorporated under the laws of any other state or territory, or any foreign country, shall be qualified and competent to take, receive and acquire, either by purchase or by operation of...