No. 146 | Pa. | Apr 11, 1887
Tbis action of debt is on a duly certified record of judicial proceedings in Queen’s bench division of the high court of justice of the province of Ontario, Canada, wherein judgment was rendered in favor of plaintiff and against defendant for $357.50 and costs.
The summons was returned: “Served on the Gautier Steel Company, Limited, a partnership association under the act of June 2, 1874, and its supplements, by giving, October 30, 1886, a true and attested copy of the within writ, to William S. Robinson, secretary of said company, and making known to him the contents thereof.”
Robinson, the person thus served as secretary of defendant, intervened, and filed an affidavit of defense, in which it is averred, inter alia, that when the writ was served he informed the deputy sheriff that he was not secretary of defendant; that said company or association had been dissolved by decree of court, its business wound up and settled, and that he, deponent,, had no agency, power, or authority to represent or act for the said defendant.
It is further averred, in substance, that the Gautier Steel Company, Limited, was organized in May, 1878, under the act of 1874, and after transacting business for over two years was duly dissolved by decree of the proper court on December 12, 1881; that from that time to the present “no sueh company, partnership, association, or business concern of any character known as or called the Gautier Steel Company, Limited, has ever had any entity or existence.”
It also appears by the affidavit that nearly five years thereafter, on petition of the use plaintiff, the same court made an order rescinding its former decree of dissolution and restoring the company “to all its rights and privileges, and subject to all its liabilities.”
The court below having discharged the rule for judgment, the sole question for our consideration is the sufficiency of the affidavit of defense.
It is contended, in the first place, that, inasmuch as the affidavit does not purport to be on behalf of the defendant, “but is made by an individual not sued, and on his own behalf,” it should not be considered. The obvious answer to this is that plaintiff, having recognized Robinson as secretary of the com
It is further contended that the affidavit does not disclose any valid defense; but we cannot assent to this proposition. Limited partnership associations, organized under tbe act of 1874, are in affect corporations, or quasi corporations. They are creatures of tbe law, and by its express provisions they may be dissolved and thus cease to exist. In a suit against a corporation, it cannot be doubted that its previous dissolution may be interposed as a defense with tbe same effect as tbe death of a natural person.
Tbe act of June 24, 1885, provides that “in every suit or judicial proceeding to which a corporation is a party tbe existence of such corporation shall be taken to be admitted unless it is put in issue by tbe pleadings.” Tbe proper time to interpose tbe fact of dissolution or nonexistence of a corporation defendant is when tbe affidavit of defense is filed. If tbe facts therein averred furnish the necessary material for a formal plea in abatement, tbe affidavit is sufficient to prevent judgment.
Tbe affidavit in this case contains everything that is required for a good plea in abatement. It avers in positive terms tbe formal dissolution of tbe company and discharge of tbe liquidating trustees nearly five years before tbe commencement of this suit.
It is no answer to say that in less than a month before tbe summons in this case was issued, tbe same court (on petition of tbe use plaintiff) rescinded tbe final order of dissolution made so long before. Under certain circumstances, perhaps, a court might be warranted in rescinding a previous decree; but there is nothing in this record that would authorize the recreation of a corporation or limited partnership association which tbe court by its decree bad dissolved nearly five years before.
There is no merit in tbe defendant’s position that tbe record of a foreign court is not within tbe affidavit of defense law.
Writ of error dismissed, at tbe costs of plaintiff, without prejudice, etc.