125 So. 804 | Ala. | 1930
This case was here on a former appeal in the report of which may be found a statement of the alleged cause of action.
Appellee places store by the decisions in Nelson v. Hubbard,
We have quoted the relevant parts of the merger or consolidation agreement. If that agreement were operative according to the full purport of its terms, there was no abatement. But the statute relating to the rights, privileges, powers, franchises, and property vested in consolidated or merger corporations must be taken into account, and if it worked abatement of the then pending action, the agreement was of no effect to the contrary.
The statute is section 7041 of the Code, which we quote in relevant part:
"Upon the consummation of such merger or consolidation, all and singular, the rights, privileges, powers, franchises * * * and all debts due on any account * * * and all other things in action belonging to each of the said several corporations shall be vested in the consolidated corporation. * * *" Our judgment of the effect of the statute is that so far as concerns the right of action asserted in the complaint there has been no dissolution of any of the merging or consolidating corporations, and that, as for matters arising prior to the merger or consolidation, appellant, and each of the merging corporations, may continue to deal with such matters, by and through the agency of the consolidated corporation, as if there had been no merger or consolidation. The statute has been enacted to obviate the loss of property and contract rights brought about by the rule of the common law which was that pending actions by or against a corporation were abated by its dissolution even though accomplished by merger or consolidation. As to the rights within the protection of the statute there is no abatement. A like continuance of corporate life for a term of five years in the case of corporations whose charters expire by limitation, or are dissolved by forfeiture, or by any other cause, except by judicial decree, for the purpose of prosecuting or defending suits, among other things, is provided by section 7069 of the Code. The effect of the statute concerning merger or consolidation, so far as concerns this case, is to provide for the survival of the original plaintiff corporation, to permit its change of name for the purposes of the suit, and so to prevent an abatement thereof and to obviate any necessity or occasion for a revivor. Appellant's offer to amend, so far as concerns the question now in hand, was tantamount to an offer to continue the suit in the name of the consolidated corporation and in that name enforce the rights reserved to the original plaintiff by the statute. The amendment should have been allowed. Whether or not the consolidated plaintiff corporation might not have been allowed further to prosecute the suit in the name of the original plaintiff, thus also serving every purpose of the proposed amendment, is a question not presented by the record. It may be that the difference between the two procedures is a difference in form only. The amendment should have been allowed. Its denial was error.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.