California Savings & Loan Society v. Harris
43 P. 525
Cal.
1896
Check Treatment
Harrison, J.

Plаintiff isa corporation, whose principal place of business is the city and county of San Francisco, and commenced the present action for the foreclosure of a mortgage that had been assigned to it. The mortgage was executed October 18, 1888, upon lands which were situated in that portion of thе county of Fresno which was afterward included in the county *135of Madera. The complaint was filed in the county of Madera September 6, 1893, and on April 25, 1884, the defendant Harris filed an amended answer, in which he set up as a separate defense “ that said plaintiff did not file in the office of the county clerk of the county of Madera its articles of incorporation, a certified copy of its articles of incorporation, and a certified copy of the copy of its articles of incorporation, as required by section 299 of the Civil Code, prior to the sixth day of January, 1894.” The cause was tried by the court, and judgment rendered in favor of the plaintiff. Upon the matter set forth in the foregoing defense, the court made findings in the same terms as it was pleaded. The defendant has appealеd upon the judgment-roll, and urges in support of his appeal that, inasmuch as the plaintiff had not filed a certified copy of its articles of incorporatiоn in the office of the county clerk of Madera county prior to the commencement of the action, it was not entitled to judgment.

Section 299 of the Civil Code requires every corporation to file in the office of the county clerk of any county in the state in which it holds any property, except the county where the original articles of incorporation are filed, “ a copy of the copy of its articles of incorporation filed in the office of thе secretary of state, duly certified by such secretary of state,” and declares, as the penalty for failure to comply with this requirement, that “ any corpоration failing to comply with the provisions of this section shall not maintain or defend any action or ‍‌​‌​​​​‌‌​​‌‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌‌​‌‍proceeding in relation to such property, its rents, issues оr profits, until such articles of incorporation, and such certified copy of its articles of incorporation, and such certified copy of the cоpy of its articles of incorporation, shall be filed at the places directed by the general law and this section.” The last clause of this sentence shоws that the previous clause is to be construed distributively, and that the documents therein named are to be filed at the places required therefor respeсtively. As section 296 of the Civil Code requires the original *136articles of incorporation to be filed with the county clerk of the county in which the principal business of the company is to be transacted, and a certified copy of these articles with the secretary of state, and, as the principal place of business of the plaintiff herein is in the city and county of San Francisco, it is evident that the only document referred to in this portion of section 299 which is required to be filed with thе county clerk of the county of Madera is the copy of the copy of its articles of incorporation certified by the secretary of state.

Thе failure to file this certified copy does not impose upon the corporation a loss or forfeiture of its property, or impair or deprive it of any cause of action or defense it may have in reference to such property. A previous filing of the certified copy is not a fact essential to the cause of action, or an element constituting the plaintiff’s right of action; and the omission of such an averment in the complaint is not a ground of demurrer (South Yuba Water Co. v. Rosa, 80 Cal. 333), or for the reversal of a judgment (Labory v. Orphan Asylum, 97 Cal. 270), and consequently is not a jurisdictional element in the suit. Nor does such failure afford to the other party any defense to ‍‌​‌​​​​‌‌​​‌‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌‌​‌‍the cause of action upon which a suit has been commenced, but is merely a special defense in the nature of a plea in abatement (Ontario State Bank v. Tibbits, 80 Cal. 68), by which the right of the plaintiff to maintain the actiоn is suspended until the statute is complied with, and is subject to the same rules of pleading as are other pleas in abatement. Being matter merely in abatement, it is а defense which may be waived by the defendant, and which is waived by him unless it is affirmatively pleaded.

Pleas in abatement, or dilatory pleas, have never been favored, and are to be strictly construed. (Looms v. Randall, 3 Cal. 438; Larco v. Clements, 36 Cal. 132.) “ The party pleading them relies on technical law to defeat the plaintiff ‍‌​‌​​​​‌‌​​‌‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌‌​‌‍s action, and is held to a technical exactness in his pleading.” (Thompson v. Lyon, 14 Cal. *13739.) Matter in abatement of the plaintiff’s action must exist at the time of filing the plea. A plea of nonjoinder of a party plaintiff is unavailing, unless at the time it is made such party can be joined as a plaintiff. (1 Saund. 291 a.) A plea of a pending suit is ineffective unless the former suit is pending at the time uhe plea is filеd. (Pew v. Yoare, 12 Mich. 16.) In Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248, it was held that the effect of such a plea was obviated by the dismissal of the former suit at any time after the plea had been filed, and before the trial. A statutory defense which does not affect the cause of action, and which is limited by its terms “until” the removal of the grounds upon which it is authorized, is to be construed with the same striсtness. The act of April 1, 1876 (Stats. 1876, p. 729), provided that a banking corporation should not maintain or prosecute any action until it had filed and published the statement thеrein required. In First Nat. Bank v. Henderson, 101 Cal. 307, it was held that this provision did not deprive the plaintiff of its right of action, and that as the defense was available only until the statute had been complied with, a repeal of the statute pending the action took away the defense, and that a judgment which had been rendered in disregard of such defense would not be reversed where the statute was repealed pending the appeal from such judgment. ‍‌​‌​​​​‌‌​​‌‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌‌​‌‍The defense which is authorized by section 299 does not confer any right uрon the defendant, and is authorized, for the purpose of enforcing a compliance by the plaintiff with a statutory requirement. It is limited by its terms “until” such compliance has been had, and when its object has been effected, its terms prescribing a penalty should be strictly construed and in favor of the corporation.

At the cоmmencement of this action the plaintiff had not filed the certified copy with the county clerk of Madera county, but it did file it with that officer sev•sr.il months before the dеfendant filed his amended answer, setting up this defense, so that at the time this *138defense was pleaded by the defendant, the plaintiff had complied with the statute. The defеnse pleaded by the defendant was, therefore, unavailing to him to prevent the plaintiff from thereafter maintaining the action.. Section 299 does not declare that the plaintiff shall not. commence an action in any county, unless it has filed a certified copy in the office of the county clerk, but merely declаres that it shall not maintain an action until it has filed it. To maintain an action is not the same as to commence an action, but implies that the action has alrеady been commenced. “ The verb ‘maintain' in pleading has a distinct technical signification. It signifies to support what has already been brought into existence.” (Moon v. Durden, 2 Ex. 30.) The expression in the opinion in Byers v. Bourret, 64 Oаl. 73, to the effect that the provision of section 2468 of the Civil Code must be complied with before the commencement of the-action, was not involved in the сase then before the-court. That section provides that an action cannot be maintained by the partnership until the publication of the certificate therein referred to has been made for ‍‌​‌​​​​‌‌​​‌‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌‌​‌‍four weeks; and it appeared at the trial of that case that the-publication of the certificatе had been commenced only one week prior thereto. If the completion of the publication had been essential to the commencement of the action, there would have been no occasion for any discussion respecting its publication subsequent to the-commencement.

The judgment is affirmed.

Van Fleet, J., and Garotttte, J., concurred.

Hearing in Bank denied.