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Park Co. v. Gibson.
when its statutory years are accomplished and its holdings of whatever sort, by force of the statute, pass to others. [Sec. 19, p. 329, G. S. 1865; Bradley v. Reppell, 133 Mo. 1. c. 552; McCoy v. Farmer, 65 Mo. 244.]
While thus on obvious principle it would appear to follow that no action can be maintained against a corporation after it expires by statutory limitation, and that a judgment against such defunct corporation is absolutely void, we have not in this State been able to find a case so holding in express terms. But in the Federal courts, and in other jurisdictions, as shown by the text-books and the cases themselves, this rule seems to be settled beyond dispute. In the case of Pendleton v. Russell, 144 U. S. 1. c. 644, it was said:
"Looking at the judgment of the circuit court of the United States, we are satisfied that the ruling of the Court of Appeals was correct. That judgment purports to be against the insurance company, but that company, at the time, had no legal existence. It had been dissolved and its franchises, rights and privileges declared forfeited by a decree of the Supreme Court of New York, in a proceeding brought by the Attorney General of the State, in the name of the people, and a receiver appointed of the effects of the corporation. The judgment was therefore no more valid against a non-existing corporation than it would have been if rendered for a like amount against a dead man. The receiver was not substituted in the place of the dissolved corporation; no process or citation was issued by that court to bring him before it, nor any proceeding taken for that purpose. Nor would such a proceeding have had any effect, for, the corporation having expired, the suit itself had abated."
In the case of Crossman v. Vivienda Water Co., 150 Cal. 1. c. 580, it was held: "It is settled beyond question that, except as otherwise provided by statute, the effect of the dissolution of a corporation is to ter
Park Co. v. Gibson.
minate its existence as a legal entity, and render it incapable of suing or being sued as a corporate body or in its corporate name. It is dead, and can no more be proceeded against as an existing corporation than could a natural person after his death. There is no one who can appear or act for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void. As to this, all the text-writers agree, and their statement is supported by an overwhelming weight of authority. [See 5 Thompson on Corporations, secs. 6721, 6722, 6723; 2 Clark & Marshall on Private Corporations, secs. 322, 329; Angell & Ames on Corporations, sec. 195; 2 Morawetz on Corporations, sec. 1031; 10 Cyc. 1316; 7 Am. & Eng. Ency. of Law, p. 854; Pendleton v. Russell, 144 U. S. 640; National Bank v. Colby, 21 Wall. 609; Mumma v. Potomac Co., 8 Pet. 281; Sturges v. Vanderbilt, 73 N. Y. 384; Rodgers v. Adriatic F. Ins. Co., 148 N. Y. 1. c. 38.]"
Likewise it was so held in the late case of Venable Bros. v. Southern Granite Co., 135 Ga. 508, 32 L. R. A. (N. S.) 446. In an excellent note to the above case to be found in the citation last above, it is said: "The doctrine is well established that in the absence of statutory regulation, the expiration of corporate life by lapse of time or decree of dissolution works an abatement of pending actions at law or against it, the reason being that its existence as a legal entity is ended, and therefore a judgment subsequently rendered will be void." [Nelson v. Hubbard, 96 Ala. 238; Wilcox v. Continental Life Ins. Co., 56 Conn. 468; Terry v. Bank, 66 Ga. 177; Eagle Chair Co. v. Kelsey, 23 Kan. 632; Bank v. Trimble, 6 B. Mon. 599; Musson v. Richardson, 11 Rob. (La.) 37; Read v. Bank, 23 Me. 318; Olds v. Trust Co., 185 Mass. 500; Torry v. Robertson, 24 Miss. 192; Greenbrier Lumber Co. v. Ward, 30 W. Va. 43; National Bank v. Colby,
Park Co. v. Gibson.
21 Wall. 609; Pendleton v. Russell, supra.] it in our view necessary to overrule the case of Board of Commrs. v. Shields, 62 Mo. 247 or St. Louis Gas Light Co. v. St. Louis, 84 Mo. 202. For in the instant case the Meramec Iron Company does not assert its continued existence, nor had it used its corporate offices for some three years before it was sued on the 2nd day of January, 1894. In the Shields case and in the Gas Light Co. case, supra, the pseudocorporations were using their corporate powers and asserting their corporate existences, and the opposing parties had been dealing with them as corporations; while in the instant case the Meramec Iron Company tacitly concedes its death, as also expressly do its directors and shareholders. But it is plain and obvious that if the two cases last mentioned are opposed to the view that after the expiring of a corporation through statutory old age, a judgment against it is not void, then those cases are opposed, not only to the universal weight of authority, but to all reason and principle. Of course, if it be true as the cases hold, that a judgment which is rendered against a corporation after its dissolution by statutory expiration is void, it follows that such judgment being void may be attacked collaterally.
If it be urged that since in truth, for lack of compliance with section 2 of chapter 62 of the Revised Statutes of 1865, the Meramec Iron Company never became a de jure corporation, but became nevertheless
by virtue of its efforts to follow the law, and of its user of corporate powers a de facto corporation, and that having become such de facto corporation it would continue by user to be a suable de facto corporation indefinitely, the answer is that a de facto corporation exists because (and only when) there is a law or statute permitting its incorporation for the purposes and with the powers assumed, but which law was not fol
Park Co. v. Gibson.
lowed (though attempted so to be) in its organization. Therefore a de facto corporation, just as does a de jure corporation, ceases to exist as soon as the law which allows it to exist has failed. Here the law forbids either private or collateral attack, it is true, but if the Meramec Iron Company had been a de jure corporation it could not have existed longer than twenty years, because under the facts here there was no warrant of law for a longer life for this sort of corporation, and the moment its span of life reached the statutory limit it would, ipso facto, have ceased to exist instantly. [10 Cyc. 1271.] Since, we repeat, no de facto corporation can exist, except where there is law allowing a corporation to be formed and to use the powers of a corporation for the purposes set out in its articles of association, so no de facto corporation can continue to exist even by continued user, after the term fixed by law as the period of its existence, has expired. For "the first requisite," says Constantineau in his excellent work on the De Facto Doctrine, "to constitute a de facto corporation is the existence of a law authorizing the incorporation. When, therefore there is no law providing for the organization of municipal corporations, there cannot be any such corporation either de facto or de jure." [Constantineau on the De Facto Doctrine, sec. 50.] Elsewhere this author says that "the law recognizes no distinction between public and private corporations in the application of the de facto doctrine." [Ibid., sec. 47.] Moreover, it is obvious that the view that by user and usurpation a corporation of whatever sort can be kept alive indefinitely, would have the effect to render nugatory and to practically emasculate all statutes providing for the organization of private corporations. For such a view applied to the concrete facts here would be tantamount to saying: Observe the law, become a de jure corporation and die of old
State v. Burgess.
age in twenty years; refuse to follow the law, become a de facto corporation and live forever.
We conclude then that since the judgment for taxes was rendered against the Meramec Iron Company, which was organized as a corporation de facto under chapter 62 of the Revised Statutes of 1865, after said company had become dissolved by statutory efflux of time, such judgment was void and the subject of collateral attack, and a sale for taxes of the land in controversy bottomed on said judgment did not pass title to the purchaser thereof. This view disposes of the case and renders unnecessary a consideration of the other interesting points mooted.
It follows that the judgment nisi was wrong, and that this case should be reversed and remanded with directions to enter judgment for plaintiff decreeing it to be the owner of said land and adjudging that defendant has no title or estate therein. Let this be done. All concur, Revelle, J., in result.
THE STATE v. W. J. BURGESS, Appellant.
Division Two, July 5, 1916.
Embezzlement: Making Way With: Specific Intent. Under the second subdivision of Sec. 4552, R. S. 1909, it is necessary to allege that the prohibited act, namely, the making away with and secreting money placed in defendant's hands as bailee, was done with the specific intent to embezzle and convert to his own use; but to charge such intent, it is not necessary to use the words "felonious" or "fraudulent," but apt words of equivalent meaning will suffice. : : With Intent to Embezzle. An information charging that defendant, being a bailee of $450 to be deposited to the credit of prosecutrix, "the said money, did then and there feloniously and fraudulently make away with