89 F. 182 | U.S. Circuit Court for the District of Oregon | 1898
The defendant in this case filed a. supplemental answer in the nature of a plea in abatement, alleging: First, that in the year 1889 the plaintiff, which is a corporation organized under the laws of Great Britain and Ireland, having its principal place of business in Dundee, Scotland, was duly and regularly wound up, dissolved, and lost its corporate existence and powers, further than might be necessary to wind up its affairs, and that at the present date it had no legal existence; and, second, that in September, 1889, the plaintiff had amalgamated with the Alliance Trust Company, a corporation of Dundee, Scotland, and had transferred to the latter company its demand against the defendant, and that under the laws of Oregon it had now no authority to prosecute the present action in its own name. The plaintiff, by replication, substantially denied these allegations. Depositions weré taken in Dundee, Scotland, concerning the issues so raised, and the plea is now presented to the court for decision. There is no controversy as to the facts. On September 27, 1889, a provisional agreement was entered into by and between the plaintiff and the Alliance Trust Company, Limited, of Dundee, Scotland, for the purpose of amalgamating the former company with the latter. In the first article of the agreement it is provided that all the property, estates, and assets,' of every kind, of and belonging to the plaintiff, excepting, firét, its uncalled capital, and, second, the assets specified in Schedule A, “are hereby hgreed to be sold, conveyed, and transferred to and vested in the Alliance Company absolutely, subject, nevertheless, to all existing charges thereon.” In the third clause it is said it is the intention of the contracting parties that the Alliance Company shall take only such interest in and title to the premises respectively as the Mortgage Company then had; “but it is also hereby agreed and declared that the Alliance Company may raise, insist on, and enforce all judgments and decrees obtained in all or any suits or actions applicable to or for the recovery of the said property,
Has the plaintiff lost its corporate existence, so that the action must abate, or, if it be still in existence, has the cause of action been so transferred to another that it may not be prosecuted in the plaintiff’s name? These are the questions which the record presents. It is contended by the defendant that whether or not the plaintiff is still in existence as a corporation depends, not upon the law of Scotland, but upon the law of the forum where the action is prosecuted, — the law of Oregon, — and that, inasmuch as by the local law no corporation can exist beyond a term of five years for the purpose of winding up after a dissolution has been had, the plaintiff, although a foreign corporation, is subject to that law, and became defunct upon the expiration of five years from the date of its amalgamation with the Alliance Company. There can be no doubt that under the provisions of the companies’ acts the plaintiff is in existence at Dundee, Scotland, for all purpose's necessary to its winding up. Under the terms of those acts no limitation is fixed upon the length of a corporation’s life after dissolution or after amalgamation for the purpose of winding up its affairs. Its existence is prolonged only for that purpose. It may not enter into other enterprises, or undertake new ventures, or carry
It is urged that, inasmuch as foreign corporations do business in this state only by permission of its authority, they become subject to the law just quoted by reason of the rule of comity, which prescribes that foreign corporations may not do business within this state on more favorable or advantageous terms than domestic corporations. It may.be said to this that the law concerning the dissolution of corporations has nothing to do with the terms on which corporations do business in the state. All foreign corporations doing business in this state under permission of its laws obtain their corporate life from the laws of thé states or countries whence they come. If they are in existence at their home offices, they are recognized as being in existence here. Such a corporation is controlled, as to its dissolution, by the laws of its domicile, and is not affected by laws which are intended to govern {he dissolution of corporations created under the local laws. The Oregon law (section 3233, 2 Hill’s Ann. Laws) provides as follows :
“All corporations that expire by limitation specified in tlioir articles of incorporation, or are dissolved by virtue of the provisions of section 3235, or are annulled by forfeiture or other cause by the judgment of a court, continue to exist as bodies corporate for a period of live shears thereafter, if necessary for the 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 the purpose of continuing their corporate business.”
The plaintiff corporation is not included in the corporations to which this section refers. It is not a corporation which has expired “by limitation,” nor has it been dissolved under the provisions of section 3235. Section 3235 refers only to corporations “organized under the provisions of this chapter,” nor has it been “annulled by forfeiture or other cause by the judgment of a court.” The plaintiff corporation still exists for the purpose of winding up its business. The prosecution of the present suit may be presumed to be a portion of that business. It was a suit which had been begun before the amalgamation, and is directly connected with the winding up of its affairs.
Concerning the second question, it may be said that the record leaves it doubtful whether this cause of action has in fact been transferred to the Alliance Company. But conceding that it has been so transferred, I think it may nevertheless be maintained in the plaintiff’s name. The Code of Oregon, while providing, as do the codes of other states, that “every action shall be prosecuted in the name of the real party in interest” (section 27, 1 Hill’s Ann. Laws), contains the further provision, found in section 38, that “no action shall abate by the death, marriage or other disability of a party; or by the transfer of any interest therein if the cause of action survive or continue. In case of the death, marriage or other disability of a party, the court may at any time within one year thereafter on motion allow the action to be continued by or against his personal representatives or successor
