95 P. 995 | Mont. | 1908
delivered the opinion of the court.
This is an adverse suit instituted by the Milwaukee Gold Extraction Company, a corporation, owning the Hannah, Alice and Dixie quartz lode mining claims, all situate in Granite county, against the defendants Gordon and Doddington, the owners of the Maude S. claim. It is alleged in the complaint that the defendants made application for patent to their claim, and during the period of publication of their notice plaintiff filed in the local land office its protest and adverse claim, alleging a conflict between the surface area of defendants’ claim and the surface areas of the claims owned by the plaintiff. It is alleged that this adverse was allowed, and that within thirty days thereafter this action was commenced.
The defendants answered, admitting the making of their application for patent, and undertook to deny every other allegation in the complaint. They also set forth affirmatively the acts and things done by them in making and perfecting their location of the Maude S. claim and in representing the same. A reply was filed which puts in issue the affirmative allegations in the answer, and also pleads a forfeiture by defendants of any right which they may have had by virtue of the location of the Maude S. claim. Upon the trial the court excluded all testimony offered by the plaintiff, heard the evidence offered by the defendants respecting their claim, and made and had entered a judgment in their favor, from which judgment and an order denying it a new trial the plaintiff appeals. Many specifications of alleged error are made by the appellant, but these may be grouped, as they present but few questions for determination.
In paragraph 1 of the complaint it is alleged “that the plaintiff is a corporation duly organized under the laws of the territory of Arizona,” etc. Paragraph 1 of the answer and the introductory clause read as follows: “Come now the defendants,
Section 690 of the Code of Civil Procedure, among other things, provides: “The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. * * *” It is said that, as defendants did not follow the language of the Code, they did not raise an issue upon the allegation in the first paragraph of the complaint. But we are not impressed with the argument; for, while the Code in section 690 above apparently contemplates that this assertion of a want of knowledge shall be in the form of a denial, we think the defendants complied substantially with the law in saying that they “have not sufficient knowledge or information to form a belief as to the matters and facts alleged in paragraph 1 of the complaint. ’ ’ In other words, we are unable to appreciate any difference in these two expressions: (1) I say that I have not sufficient knowledge or information to form a belief as to a particular allegation; and (2)1 deny that I have any knowledge or information sufficient to form a belief as to a particular allegation. The supreme court of California in Rill v. Smith, 27 •Cal. 476, has held that two such expressions are identical in their meaning. Section 755 of the same Code seems to authorize, or .at least to countenance, the form of denial adopted by the defendants. That section provides: “An allegation that the party has mot sufficient knowledge or information to form a belief with respect to a matter, must, for all purposes, including a criminal prosecution, be regarded as an allegation that the person verifying the pleading has not such knowledge or information. ’ ’
In order to give the plaintiff any standing in court it was .necessary, since it was not a private person, to allege the char
The provisions of our Code above, authorizing a denial of knowledge or information sufficient to form a belief, are applicable to any or every allegation in a complaint. That form of denial will raise an issue as to the corporate existence of a plaintiff as well as to any other fact pleaded in the complaint. The doctrine announced in 2 Beach on Corporations, section 869, and 5 Encyclopedia of Pleading and Practice, 87, cannot be applicable to such provisions of law as we have in section 690 above. That section does not authorize us to make an exception in favor of an allegation that the plaintiff is a corporation.
It is alleged that the plaintiff is a corporation organized under the laws of Arizona, and plaintiff undertook to proye this fact, and to that end introduced in evidence what it denominated a. certified copy of the articles of incorporation of the company. From the paper offered it appears that the original articles of incorporation were filed in the office of the county recorder of Maricopa county, Arizona; that the county recorder made a certified copy thereof, which was filed in the office of the Secretary of
Section 1, Article IV, of the Constitution of the United States, provides: “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other-state; and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.” Conformably with this provision, the-Congress in 1801 enacted what is now section 906, Eevised Statutes of the United States (U. S. Comp. Stats. 1901, p. 677), a part of which section is as follows: “All records and exemplifica
But appellant contends that the state of Montana has by statute provided how proof of a public record may be made, and cites section 3207 of the Code of Civil Procedure. But this section clearly refers to a public record of a private writing within this state. (Western Iron Works v. Montana Pulp & Paper Co., 30 Mont. 550, 77 Pac. 413.) If we have any statute upon the subject, it must be section 3206 of the same Code. After enumerating various other documents, that section in subdivision 7 provides: “Other official documents, may be proved as follows: * * * (7) Documents of any other class in a sister state, by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the Secretary of State, judge of the supreme court, district, or county court, or mayor of a city of such state, that the copy is duly certified by the officer having the legal custody of the original.” We need not decide, as it is not necessary, to what extent, if any, section 3206 above has supplemented or supplanted the provisions of section 906 of the
In the absence of a statute of this state defining the evidentiary value or effect of a copy of a record from another state, section 906 above is binding upon the courts of this state, at least to the extent of defining the evidentiary value of such a copy. If it was sought to prove the corporate existence of this company by the certified copy of the articles of incorporation from the office of the county recorder of Maricopa county, then there is absent the certificate of the judge of the court of that county, or of the Governor or Secretary of the territory, that the attestation is in due form and by the proper officer. If it was intended to rely upon the copy from the office of the Secretary of the territory, then it lacks the impression of the great seal of that territory. The certificate of the Secretary of the territory of Arizona concludes as follows: “In witness whereof I have hereunto set my hand and affixed my official seal” — followed by the word “seal.” This record does not bear the impression of the seal, or indicate what it is. The seal used may or may not have been the great seal of the territory. There is not any presumption that it was such great seal (Sisk v. Woodruff, 15 Ill. 15), and since it is necessary that the fact be made to appear affirmatively that the statute has been complied with, there was a failure in this particular. This question has received consideration from many courts; but it is sufficient to cite in support of the ruling of the trial court in this instance, Parchen v. Peck, 2 Mont. 567, where it is said: “The refusal of the court to admit in evidence the articles of incorporation is assigned as error. The laws of Iowa, under which it is claimed that the Northwest Transportation Company was incorporated, provides that a corporation shall be organized by articles of incorporation, which shall be recorded in the offices of the recorder and Secretary of State (Iowa Code, 1873, p. 183.) To entitle the records of these articles to be admitted in evidence in this territory, how should they be authenticated? There are no statutes of this territory providing in what manner a record of this character should be
But if the attestation had been in due form, the trial court could not be put in error for excluding the paper; for, standing alone, it was insufficient for any purpose. In this country there-is not any common-law rule for granting charters to corporations,, which are the creatures of law, and are authorized either by private statutes or by general laws. (Savage v. Russell, 84 Ala. 103, 4 South. 235; Florsheim & Co. v. Fry, 109 Mo. App. 487, 84 S. W. 1023.) If the certified copy had been admitted, the-questions which would necessarily have suggested themselves at once would have been: Can a corporation be organized in Arizona for mining purposes? If so, how is it organized in that territory? Is the county recorder the proper custodian of the-record of its organization or its articles of incorporation, and do the laws of Arizona authorize or require a certified copy of the-articles of incorporation to be filed in the office of the Secretary of the territory ? And even if these questions are all answered, a further one would have suggested itself, viz.: What use can be-made in Arizona of a certified copy of a public record of that tertory? Can it be used as evidence in the courts there?
■ Section 906, U. S. Rev. Stats., further provides: “And the said records and exemplifications so authenticated shall have such.
It may be said to be a rule, recognized by the courts generally, that in order to make proof of the corporate existence of a foreign corporation, it is requisite that in addition to the properly authenticated paper there must be evidence to show the laws of the foreign state authorizing the organization of such a corporation, providing the mode of its incorporation and the proper custodians of the paper offered in evidence. (Savage v. Russell, and Florsheim & Co. v. Fry, above.) In Wilcox v. Bergman, 96 Minn. 219, 104 N. W. 955, 5 L. R. A., n. s., 938, this doctrine is succinctly stated as follows: ‘ ‘ Our conclusion is that, to render certified copies of records from a sister state competent evidence in the courts of this state, it must be shown that the statutes of that state provided for and authorized the reeord to be made, and also the particular force and effect given to certified copies as evidence in the courts of that state.” Of course the mere fact that the Secretary of State of Montana accepted and filed in his office the copy of the articles of incorporation from the office of the Secretary of the territory of Arizona cannot add anything to its value as evidence. Whether the copy filed is sufficient to show that the corporation, if properly organized,
But counsel for appellant rely upon Hammer v. Garfield M. & M. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964; but an examination of the record in that case will disclose that the question of the due authentication of the paper used was not before the court and was not passed upon. The decision in that case must, therefore, be understood with reference to the particular matter before the court for determination. Counsel for appellant also cite a portion of section 7712 from Thompson on Corporations; but an examination of the text will show that it is based upon the decision in Knapp & Co. v. Strand, 4 Wash. 686, 30 Pac. 1063, and that case was decided upon a particular provision of the statute of Washington, and is not applicable here, where we have no such statute.
But it is earnestly contended that, even though the court was correct in excluding the copy of the articles of incorporation, it erred in excluding plaintiff’s offered proof that the plaintiff was and is a corporation de facto. This position, however, is untenable; for it is a well-settled rule that, in order to prove that a corporation de facto exists, these facts must appear: (1). That there is a law of the state or territory of the corporation’s alleged existence authorizing the organization of such a corporation; (2) that a bona fide attempt was made to effect such organization; and (3) the actual user of the corporate powers, or some of them, which might rightfully have been used had the corporation been regularly organized. (Finnegan v. Noerenberg, 52 Minn. 239, 38 Am. St. Rep. 552, 53 N. W. 1150, 18 L. R. A. 778; 10 Cyc. 252.) The evidence offered by the plaintiff wholly failed to prove, or tend to prove, either the first or second of these prerequisites.
Appellant also urges certain alleged errors of law occurring with respect to the prima facie case made by the defendants. In this connection it is suggested by counsel for respondents that, since these alleged errors are not specified in the “bill of exceptions and statement on motion for a new trial,” they .cam
Appellant seems to insist that, although the offered testimony may not have been sufficient for any other purpose, it was sufficient to show that at the time of the location of the Maude S. claim the particular ground in controversy here was not open, public land of the United States subject to mineral location, but was held and possessed by plaintiff or its predecessors in interest under the locations of the Hannah, Alice and Dixie claims. But we cannot determine whether this is true or not. The bare possession of the conflicting area by naked trespassers or claimants attempting to hold under void locations would not be sufficient to withdraw the land from entry; and whether plaintiff or its predecessors in interest were in possession under valid mineral locations we are not able to determine, for appellant has omitted from the transcript the declaratory statements of these several claims, and we are therefore unable to say whether the area in conflict was or was not withdrawn from entry at the time of the location of the Maude S. claim.
It is impossible for this court to say whether certain offered evidence was improperly excluded,. unless the record discloses the offered evidence. (Haupt v. Simington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 Pac. 672; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297; Leggat v. Carroll, 30 Mont. 384, 76 Pac. 805.)
Objection is made to the sufficiency of the declaratory statement of the Maude S. claim, and to the introduction in evidence •of an amended and also a second amended declaratory statement of that claim. We do not think that the original declaratory statement of the Maude S. claim was absolutely void, but 'this is not material here, since plaintiff has failed to show that it had any right whatever to the ground in controversy so far -as this record discloses. (Wilson v. Freeman, 29 Mont. 470, 75 Pac. 86, 68 L. R. A. 833.) Assuming, but not deciding, that the first amended declaratory statement was insufficient, there •is not any contention made that the second amended declaratory statement is not complete; but the objection is urged that, since this second amended declaratory statement was not filed until the time of the trial of this case, it was not of any efficacy what•ever. Our statute (Laws 1901, p. 56) authorizing the filing •of amended declaratory statements is the same as a statute which .has been in force in Colorado for many years (Gen. Laws, Colo. 1877, p. 631, sec. 1823). In Strepey v. Stark, 7 Colo. 614, 5 Pac. 111, the supreme court of Golorado had under consideration the •same question as is here presented, and after a somewhat extended reference to their statute, said: “The purpose of this ■additional certificate appears to be sufficiently expressed by the language of the Act. It cannot create a right of possession or .location in the premises claimed under the first location, which ■did not exist prior to the filing of such additional certificate. It can confer no additional right, and is therefore evidence of none as against any intervening or pre-existing right of an•other. It follows that, except as against such intervening rights, ■an additional certificate serves the same purpose, in its admission as evidence, as that of an original location certificate, and will relate back to the first location. The evident intent of
We have reviewed in detail those specifications of error which appear to us to present appellant’s principal contentions. We have, however, examined the other specifications, but do not think that they raise any serious questions. At least they do not present any errors which ought to work a reversal of this judgment. The judgment and order are affirmed.
Affirmed.