Meeks v. Arkansas Light & Power Co.
227 S.W. 405
Ark.
1921
Check Treatment
Wood, J.

This is an action instituted in the chancery court of Columbia County by the appellant against the appellees. The appellant alleged that the Arkansas Light & Power Company was originally incorporated as the Arkansas Power Company, of which Gus Kohn and Harvey Couch were stockholders, and that it was reineorporated and was doing business under the name of the Arkansas Light ■& Power Company, and Couch and Kohn were stockholders of the latter company; that on or about the 15th of June, 19l4, E. B. Meeks entered into a contract of hire with the Arkansas Power Company for the remainder of the year 1914 at a salary of $80' per month, which contract was not in writing; that the company broke the contract by discharging him without cause, to his damage in the sum of $320, for which he prayed judgment.

The Arkansas Light & Power Company answered, denying all the material allegations of the complaint. Kohn and Couch entered a general demurrer to the complaint. On the 26th of April, 1920, the appellees moved to dismiss the complaint on the ground that the facts stated therein did not constitute a cause of action over which the court had jurisdiction. The court, over the objection of appellant, sustained the motion and entered a judgment dismissing the complaint, to which appellant duly excepted and prayed for and was granted an appeal to the Supreme Court. The appellant then asked that the case be transferred to the circuit court, which request or motion the court denied.

Two questions are presented: (1) Does the complaint state a cause of action in equity? Where one corporation is merely a reorganization or continuation of another corporation, the former is liable on the contracts of the latter. That is, where the circumstances are such as to warrant the conclusion that the former is not a separate and distinct corporation, but merely a continuation of the latter, and hence the sam'e person in law, and where the new corporation has in express terms or by reasonable implication assumed the debts of the old corporation an action may be maintained against the new corporation for those debts. Spear Mining Co. v. Shinn, 93 Ark. 346; Good v. Ferguson & Wheeler, 107 Ark. 119; Ferguson & Wheeler v. Good, 112 Ark. 260. The complaint did not state a cause of action against the appellees in equity. It does not allege that the appellees, Kohn and Couch, expressly assumed the debts of the Arkansas Power Company, nor that any of the assets of the defunct corporation had gone into their hands. See Arlington Hotel Co. v. Rector, 124 Ark. 90; Shafford v. Lesser & Co., 127 Ark. 590; Alf. Bannett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421.

(2) Did the court err in dismissing the cause for want of jurisdiction? The motion to dismiss on the ground that the facts set forth in the complaint did not state a cause of action was but tantamount to a general demurrer. McAlister v. Graham, 206 S. W. 393; Yancey v. Boyce, 1916 A. & E. Ann. Cas. 558. The record shows that the final judgment was entered on this motion dismissing the appellant’s complaint. This ruling of the court was error. Since the complaint stated a cause of action at law, the same should not have been dismissed. Regardless of the name of the pleading, the court should have treated it as a motion to transfer to the law court, and should have transferred the cause to that court, instead of dismissing the same. Section 1041 C. & M. Digest; Daniel v. Garner, 71 Ark. 484; Wood v. Stewart, 81 Ark. 41; Rowe v. Allison, 87 Ark. 211; Smith v. Pinnell, 107 Ark. 185; see also Lawler v. Lawler, 107 Ark. 71.

For the error indicated, the judgment is reversed with directions to the chancery court to enter an order transferring the cause to the law court.