144 Mich. 221 | Mich. | 1906
(after stating the facts). The questions proper to be considered and determined arise upon the practice followed and upon the information and plea.
“The closing appeal in relator’s brief, though untrue in statement of facts, does at last get down to the real question here. That question is: Shall respondent be dissolved and be prevented from using the- mails in closing up its business, solely because the new illegal corporation wants the exclusive use of the name, Grand Rapids Sticky Fly Paper Company ? All other questions raised by relator are mere masks behind which the real question has always lurked. Dickinson et al. got their money for their stock, and then Dickinson and perhaps some of the others went into the same business, as they lawfully might. But they illegally assumed respondent’s name for their new company. ' When the post office refused to deliver to the new company mail that came addressed ‘Grand Rapids Sticky Fly Paper Company,’ and when, after a contest in the post office department, it adhered to that decision, then this suit was brought in the -name of the people on relation of the attorney general, not to test the right of the respondent to the exclusive use of its name, but on the pretense that respondent had violated the antitrust laws. And then, having got into court, this pretense was abandoned. (We do not say that the attorney general was at all a party to this conduct.) The case is here in control of the new illegal corporation. Its counsel have had the sole management of it.” '
In various ways the briefs afford the information that an animated contest was made upon the hearing of the motion for leave to file the information.' None of the matters then produced, unless it may be the information itself, are before this court. The statute provides:
“It shall be the duty of the attorney general, whenever he shall have good reason to believe that the same can be established by proof, to file such information in every case of public interest; and also, in every other case in which satisfactory security shall be given to indemnify the people of this State against all costs and expenses to be incurred thereby.” 3 Comp. Laws, § 9950.
It is complained that judgment was rendered on the motion of relator, and that the demurrer of respondent to certain parts of the information' was not regularly brought on for hearing; that the motion for a judgment amounted to .abandonment by relator of all charges in which the public has an interest, and that the case should be treated by this court, for this reason, as one not of pub-' lie interest, and as one now resting upon charges which would not have warranted the interposition of the attorney general nor have secured permission to file the information. These objections relator answers by saying that the plea of respondent admits facts which may be, and by the court were, treated as conclusive evidence of acts of surrender, misuser, and nonuser; that, if this court is of opinion that the admitted facts sustain a forfeiture, the judgment of the trial court must be affirmed, even though this court would not, as a court of original jurisdiction, have declared the forfeiture. Precisely what questions are open to review on error in proceedings of this nature, where the attorney general and the court "below have both exercised discretion in permitting the institution of the proceeding, we need not determine. We are of opinion that in this case the plea confesses acts, of respondent which are by statute made ground for its dissolution. It is charged that it became, and for a period of more than one year remained, insolvent. The fact is. admitted by the plea. It is provided by the statute (3 Comp. Laws, § 9762) that as a consequence “it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this State, and shall be adjudged to be dissolved.” There is statute sanction for the filing of an information against a corporation “whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises.”
The motion for judgment may be treated as a demurrer to the plea. The facts admitted by the plea amount, in law, to a surrender by respondent of its corporate privileges, generally, and it cannot be held that it was error on the part of the trial court to so determine. People, ex rel. Crawford, v. Molitor, 23 Mich. 341. The judgment is, therefore, affirmed.
It is proper to add, in view of the averments in the information and the plea, concerning a corporation organized in November, 1904, which assumed the name of respondent, that the. judgment in this proceeding does not determine or establish the rights or privileges of that corporation. - Whether the provisions of 3 Comp. Laws, § 8534, do or do not insure to a corporation, dissolved by order of court, the use of its name in closing its affairs, is' a question which does not arise upon this record.
