Yankton Nat. Bank v. Benson

• Decision Date: 21 March 1914
• Citation: 146 N.W. 582,33 S.D. 399
• Parties: YANKTON NAT. BANK v. BENSON.
• Court: South Dakota Supreme Court

146 N.W. 582

33 S.D. 399

YANKTON NAT. BANK v. BENSON.

Supreme Court of South Dakota

March 21, 1914

Appeal from Municipal Court of Sioux Falls; Alpha F. Orr, Judge.

Action by the Yankton National Bank against E. C. Benson. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Joe Kirby, of Sioux Falls, for appellant.

G. J Danforth, of Sioux Falls, for respondent.

GATES J.

Action was brought in the municipal court of Sioux Falls, in the year 1913, upon a justice court judgment rendered in 1896. The defendant limited his answer to a specific denial of the corporate existence of the plaintiff. The cause was tried by the court, which on August 25, 1913, made the following findings of fact:

"(1) That on or about the 10th day of February, 1896, the Yankton National Bank, a corporation, had and recovered judgment against the defendant, E. C. Benson, in the sum of $62.45.

"(2) That said judgment was recovered before W. D. Stites, justice of the peace in and for Minnehaha county.

"(3) That the defendant was, at the time the action was commenced and at the time of the service of the summons, a resident of Minnehaha county.

"(4) That in said action the summons was duly and legally served upon the defendant, E. C. Benson, by H. H. Schwartz, and due proof of service filed with the justice.

"(5) That the plaintiff in its complaint alleged: That it was a corporation duly organized and existing according to law; and that the defendant by his answer especially alleged and set forth that the plaintiff is not a corporation organized and existing according to law, and further alleged and averred that the plaintiff has no corporate existence; that the plaintiff offered no proof of any kind or character that it was a corporation organized and existing according to law and that therefore the court finds that the plaintiff is not a corporation organized and existing according to law, and has no capacity to sue, and that there is no proper party plaintiff to this suit."

The conclusions of law were in accordance with finding 5. Thereupon judgment was entered dismissing the action, and therefrom plaintiff appeals.

The plaintiff contends that finding 1 is conclusive as to its corporate existence, and that the defendant, having dealt with the corporation, is estopped to deny its corporate capacity. The respondent controverts these contentions and further asserts that by finding 1 the court did not find that plaintiff was a corporation in 1896. With the last assertion we cannot agree. We cannot interpret finding 1 otherwise than as a finding that plaintiff was a corporation in February 1896. In the view we take of the case, there is a decided conflict between findings of fact 1 and 5. The record does not present the evidence, so that the only question before us is whether the judgment is supported by the findings of fact. We do not know what the nature of the proof was upon which the court was enabled to find that the plaintiff was a corporation in 1896. If such proof consisted of the justice court judgment, then it was a conclusive determination of the fact of the corporate existence of the plaintiff at the time the justice court judgment was rendered, whether that judgment was by default or rendered after trial. 10 Cyc. 1353.

The specific denial of the corporate existence made by defendant cast upon the plaintiff the burden of proving that fact. Cook on Corporations (6th Ed.) § 753; 5 Ency. Pl. & Pr. 82; 10 Cyc. 1360; 4 Ency. U.S. S.Ct. 768. Has that burden been met by the plaintiff? It has not, unless there arises a presumption that, because the plaintiff was a corporation in February, 1896, it also was in August, 1913.

In Weeks v. Cranmer, 18 S.D. 441, 101 N.W. 32, this court stated the following rule, in accordance with established precedent: "When the existence of a condition or thing is admitted or proved, it is presumed to continue until the contrary is legally established by a counter presumption or rebutting testimony." Perhaps that statement is somewhat broad, if carried to its last analysis. Referring to that rule the author of Jones on Evidence, § 58, said: "Although this rule has long had the sanction of the highest authority, it will be observed that it is stated in very general terms; and it must have a reasonable interpretation."

In 16 Cyc. 1052, we find the rule stated with more care and precision: "Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time."

In Wigmore on Evidence, § 437, the author says: "When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is, in human experience, some indication of its probable persistence or continuance at a later period. The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing...