253 P. 460 | Wash. | 1927
This is an action at law brought by the respondent against the appellants for damages arising out of fraud and deceit alleged to have been *364 perpetrated upon him by the appellants. The appellants' answer denied all the allegations of fraud and, by set-off and cross-complaint or counterclaim, sought to recover damages because of fraud and deceit alleged to have been perpetrated upon them by the respondent, all growing out of the same transactions referred to in respondent's complaint. The answer did not allege that appellant corporation was in good standing as to the payment of its last annual license fee. The affirmative matter in the answer was denied by a reply, which further affirmatively alleged that the appellant corporation had not paid its last annual license fee and that, therefore, it had no right to maintain an action in any court in this state nor defend by way of demanding affirmative relief. Certain proceedings and a hearing in the cause, adverse to the appellants, were had before the court commissioner. It is not clear from the record that the respondent at that time had affirmatively alleged the failure of the appellant corporation to pay its last annual license fee, although it seems that the point was there raised by a special demurrer for want of capacity to sue on the part of the corporation because it did not appear upon the face of the answer that the license fee had been paid. However, the state of the record before the court commissioner and his action in the case are not important because, under Rem. Comp. Stat., § 86 [P.C. § 8592], the appellants had those proceedings reviewed by the superior court. On reviewing them in the court and the cause being reopened for further consideration, appellants asked leave to amend their answer by alleging that the corporation had paid its last annual license fee, and at the same time, after appellants' motion to amend, the respondent moved for a voluntary nonsuit and dismissal of the action. Appellants' motion to amend their answer was denied. Respondent's motion for a *365 voluntary nonsuit was granted and a judgment of dismissal was entered. This appeal followed.
[1] The rulings and judgment were erroneous. Under the condition the pleadings were in, the respondent, plaintiff in the action, was not entitled to have the action dismissed, as may be seen by the terms of Rem. Comp. Stat., § 408 [P.C. § 8122]. InFisher Flouring Mills Co. v. McClinton,
"Under this section we have held that, where one seeks affirmative relief growing out of the same transaction, the plaintiff is not entitled to a voluntary non-suit. WashingtonNational Building, Loan Inv. Ass'n v. Saunders,
[2] Nor will the contention over the payment of the corporation's last annual license fee relieve the situation in favor of the judgment, for two reasons. (1) The complaint was against three persons, two individuals or natural persons and one corporation, all three of whom answered jointly and all three of whom are affected by the judgment of dismissal. The payment of an annual license fee applies only to corporations. (2) It has been decided that the statute to the effect that a corporation shall not commence or maintain any suit in any court in this state without alleging and proving that it has paid its annual license fee last due is a revenue measure. In Eastman Co. v. Watson,
Reversed.
MACKINTOSH, C.J., MAIN, FULLERTON, and FRENCH, JJ., concur.