198 P. 158 | Idaho | 1921
Lead Opinion
Respondents heretofore made a motion in this court to strike the reporter’s transcript from the record and to dismiss the appeal in this cause, and the opinion of this court thereon, which will be found ante, p. 198, 191 Pac. 204, contains a statement of the material facts of the case, and discloses the action of this court in striking the reporter’s transcript and denying the motion to dismiss the appeal.
The reporter’s transcript having been stricken, the only record now before us is the judgment-roll. As was said by this court in the case of Storey & Fawcett v. Nampa & Meridian Irr. Dist., 32 Ida. 713, at 720, 187 Pac. 946, 947: “It must be regarded as settled law in this state under existing statutes that where upon appeal from a judgment the record brought to this court contains neither a transcript of the proceedings had upon the trial nor a bill of
We have carefully examined the pleadings, from which it appears that a cause of action is stated. The findings are responsive to the material issues presented by the pleadings, and sustain the conclusions of law and the decree entered thereon.
Appellants contend that the court erred in refusing to set aside and vacate an order permitting H. J. Benson to intervene. There is no merit in this contention. Benson had an interest in the controversy, and was represented by the trustee. Without deciding whether he had a right to intervene, the action of the court in permitting him to do so, if error, was harmless, inasmuch as no substantial right of appellants could have been affected thereby. (4 C. J., p. 925.)
The- judgment is affirmed. Costs are awarded to respondents.
Rehearing
ON PETITION FOR REHEARING.
Appellants have filed a petition for rehearing in this ease. They insist that the court erred in holding that the permission of Benson to intervene in the original action was harmless error. We are by no means convinced that the permission granted to Benson to intervene was erroneous. But in any event, we adhere to our former opinion that no prejudice resulted from the intervention.
It is further insisted that the trust deed executed by the Bergh Mining & Milling Company, a Washington corporation, to respondent Barber, which was foreclosed by the judgment in the action, was void, for the reason that at the time of the execution thereof the right of the corporation to do business in this state had been forfeited to the state for failure to make its annual report and pay its license fee as provided in C. S., see. 4798.
Appellants, after having directed and executed the trust deed, acting in the capacity of officers of the defunct corporation, are estopped from denying the corporate existence of the Bergh Mining & Milling Company and from showing that its right to do business had been forfeited at the time the trust deed was executed. (14 C. J., pp. 237 and 247; Fletcher, Enc. Corporations, p. 679; Chadwick v. Dicke Tool Co., 186 Ill. App. 376; Brady v. Delaware Mut. Life Ins. Co., 2 Penne. (Del.) 237, 45 Atl. 345. See, also, Henry Gold Min. Co. v. Henry, 25 Ida. 333, 137 Pac. 523; Toledo Computing Scale Co. v. Young, 16 Ida. 187, 101 Pac. 257.)
It is also urged that the trust deed is invalid because it was never executed by appellant Jennie Bergh, wife of appellant G. A. Bergh. Under the findings, however, she had no interest in the property, and it was not necessary that she execute the trust deed.
The petition should be denied, and it is so ordered.
