77 F. 855 | U.S. Circuit Court for the District of Oregon | 1896
The issues in this case were made, find the case was ready for trial, in the year 1886. On May 6, 1896, the defendant obtained leave to file an amended answer. Instead of filing an amended answer, he filed, under the name of an amended answer, a supplemental answer, in the nature of a plea in abatement, alleging that in the year 1889 the plaintiff was duly and regularly wound up, dissolved, and discontinued its corporate existence, and lost its corporate powers, further or otherwise than might be necessary to wind up its affairs, and that, at the present date, the said corporation has no legal existence. The plaintiff thereupon moved to strike the so-called amended answer from the files, for the reason that it is not an answer to the merits of the controversy, and is not an amended answer such as was contemplated in the order permitting it to be filed.
There can be no doubt that, without the permission of the court, the defendant had the right to file this plea, which has the .effect of a plea of nul tiel corporation, alleging matters occurring after the commencement of the action, and that he could do so whenever the
“Continue to exist as bodies corporate for a period of five years thereafter if necessary for tbe purpose of prosecuting or defending actions, suits or proceedings, by or against them, settling their business, disposing of their property and dividing their capital stock, but not for tbe pm pose of continuing their corporate business.” Hill’s Ann. Laws Or. § 3233.
In some of the states where tile corporate existence is so extended by statute, express authority is given to prosecute to a final judgment all actions begun by the corporation within the limited period. Bank v. Cooper, 36 Me. 179; Lumber Co. v. Ward (W. Va.) 3 S. E. 227. Under such a law was decided ¡he case of Bewick v. Harbor Co., 39 Mich. 700, which is cited by counsel for the plaintiff. In that case the court held that the corporation might prosecute to a close any action commenced within the tlivee-year period of limitation fixed by the statute, but in so holding g ive effect to another provision of the law upon the same subject, which provided that no such suit, once commenced, should become abated at any time until brought to a close. There is no such or similar provision in the Oregon law. The statute of this state gives a bare extension of life for a fixed period after the dissolution of the corporation. Without the statute, as we have seen, by the common law, all corporations were defunct from the moment of their dissolution. The statute extends their existence for a further period for a. stated purpose. At the expiration of that period it is the logic of ti e common-law rule that the corporation is as absolutely defunct as it would have been in the first instance had not its life been prolonged by the intervention of the statute. The supreme court of Massachusetts has held that a judgment recovered against a corpoi ation after the expiration of a similar period of limitation is absolutely void. Thornton v. Freight Co. 123 Mass. 32.
Counsel for plaintiff rely upon the language of the plea, in which it is alleged that the corporation ceased to exist “further than might he necessary to wind up its affairs.” To this B may be said that, if