69 Fla. 15 | Fla. | 1915
M. J. Roess, doing business undei' the name and style of Roess Lumber Company, instituted an action of assumpsit against the Malsby Company, a corporation organized under the laws of the State of Georgia and doing business in Marion County, Florida. The defense relied upon is set forth in the following plea:
“And for a third and further plea this defendant says that the said alleged cause of action sued upon in this cause did not accrue within three years before the commencement of plaintiff’s action. That the said defendant is a foreign corporation organized and existing under the laws of the State of Georgia, and was doing business in the State of Florida and kept and maintained an agent transacting business for it in said State of Florida, upon whom any process against said defendant could have been served in pursuance of paragraph 5 of section 1106 of the General Statutes of the State of Florida, at the time of the commencement of plaintiff’s action and continuously immediately prior thereto for a period of more than three years.”
To this plea the plaintiff interposed the following de murrer:
. “Now .comes the plaintiff in the above cause, by its undersigned attorney, and demurs to the third plea of defendant of the statute of limitations filed herein, and says that the same is bad in substance, and for points of law to be argued in support of this demurrer, said plaintiff states the following:
1. That the domicile of a foreign corporation's in the State under the laws of which it was organized and incorporated, and defendant is therefore a non-resident of*17 the State of Florida, and not entitled to invoke or rely upon the statute of limitations.
2. The mere fact that a corporation organized and existing under the laws of another State, and not under the laws of the State of Florida, may keep and maintain an agent in the State of Florida for the transaction of its customary business, and upon whom process could have been served under paragraph 5, of section 1106 of the General Statutes of the State of Florida, does not authorize, or permit such foreign corporation to rely upon or plead to statute of limitation.”
The following proceedings were then had:
‘‘The sole question argued and submitted under the demurrer is whether a foreign corporation may plead and rely upon the statute of limitations in this State, the defendant contending that a foreign corporation doing business in this State, and having an agent in the State, upon whom service of process could be made, is just as much entitled to plead and rely upon the statute of limitations as would be a domestic* corporation. This question, so far as this court is advised, has not been directly passed upon by the Supreme Court of this State; nor does it appear to have been raised in any case that has been called to the court’s attention. The courts - construing similar provisions of statutes are not at all in harmony, one line holding that a foreign corporation cannot invoke the statute of limitations, and the other line holding just as positively that it can. The abstract proposition that a foreign corporation cannot invoke the provisions of the statutes of limitations I cannot agree with. If such were the law, then we would have a condition providing for*18 the serving and bringing into court of a foreign corporation, through its local agents, to answer demands against it, and then denying to it the other provisions of the statute in answer to those demands upon the sole theory that its domicile is out of the State.
It is ordered and adjudged that the said demurrer be, and is, hereby overruled, to which ruling the plaintiff excepts.
At the time of making this order the plaintiff being present in court by his attorney, announced that the plaintiff did not desire to make further reply to defendant’s third plea of the statute of limitations, and thereupon declined and refused to join issue or to make replication to said third plea, and announced in open court that the said plaintiff did not desire to join issue or reply further to said plea, or to join issue upon or reply to the first plea.
And it appearing to the court that by reason of plaintiff’s refusal to join issue upon,- or otherwise reply to said pleas that said action cannot be tried, the said ruling upon demurrer is therefore made final, and it is ordered and adjudged that this action be and the same is hereby dismissed at the cost of the plaintiff, and that the defendant go hence without day, and recover its costs in this behalf expended taxed by the Clerk at Two Dollars
Done and ordered at Chambers at Ocala, Florida, on this 10th day of July, A. D. 1914.
W. S. Bullock, Judge.”
As is agreed by the respective counsel for the parties litigant the only point presented to us for determination
It is undoubtedly true, as stated by the Circuit Judge, that the authorities are in conflict upon this point. We shall not attempt the impossible task of reconciling them and neither shall we undertake to cite them all. After a careful consideration of all that have been cited to us by the respective counsel and of such others as we have been able to find we are of the opinion that the ruling
The judgment will be affirmed.