12 S.D. 43 | S.D. | 1899
In January, 1892, the Atlantic Dynamite Company, a corporation organized and existing under the laws of the state of California, commenced an action in the circuit court of Pennington county to recover the sum which that company claimed to be due it from the defendant under a contract existing between it and the said defendant, by which the said defendant was appointed the sole agent of that company to sell its goods in Pennington county, and by j which contract the defendant guaranteed the payment of all money for all sales made.- The defendant duly filed an answer to this complaint, and the action remained upon the calendar of the circuit court of Pennington county until May, 1897, when the plaintiffs herein applied for and .were granted leave to file an amended and supplemental complaint. To the amended and supplemental complaint filed the defendant interposed a demurrer, upon the ground that it appears upon the face of the complaint that the plaintiffs have no legal capacity to sue. The demurrer was sustained, and from the order sustaining the demurrer the plaintiffs have appealed to this court.
The plaintiffs copy into their amended and supplemental complaint, substantially the original complaint, and state that in January, 1892, the Atlantic Dynamite Company commenced its action against the defendant for the amount so due and unpaid. Plaintiffs further state that, before any further proceedings were had in the said cause, a
While the grounds upon which the demurrer was sustained were not stated in the order, we may reasonably presume that it was sustained upon the theory that the Atlantic Dynamite
The appellants contend that the contract between the Atlantic Dynamite Company and the Defendant was a valid contract, and that, under the decisions of this court, that corporation was duly authorized to maintain an action for the enforcement of the same, notwithstanding it h&d failed to comply with the requirements of the statute. They further insist that the right of the corporation to maintain the action was a vested right, of which it could not be deprived by the legislature of this state, and that the present trustees of the dissolved corporation have suceeded to this vested right, and that the plaintiffs are trustees, not by virtue of any appointment of a court of the state of California, but under and by virtue of the laws of said state. The respondent insists that, by the amendments of the statute in .1895, the corporation could not further maintain its action without complying with the requirements of the statute as amended, and that, having failed to comply with the same prior to its dissolution, its right to maintain the action was terminated; and he further insists that, as the corporation had not complied with the laws of this state and could not maintain its action at the timeof its dissolution, the trustees, as successors of such corporation, are equally precluded from main taining the action. He further insists that the plaintiffs are trustees in the nature of receivers appointed by the superior court
By Section 2940. Comp. Laws, it is provided that, unless other persons are appointed by the court, the directors or man
The position of the plaintiffs, as trustees of the dissolved corporation, seems to be quite similar to that of the superintendent of the insurance deparment of the state of Missouri, in the case of Relfe v. Rundle, 103 U. S. 222. In that case the supreme court of the United States says: “Relfe is not an officer of the Missouri slate court, but the person designated by law to take the property of any dissolved life insurance corporation of that state, and hold and dispose of it in trust for the use and benefit of creditors and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the statutory successor of the corporation, for the purpose of winding up its affairs. As such, he represents the corporation at all times and places in all matters connected with his trust. He is the
We are clearly of the opinion that the amendments to Section 3190 and 3192, made in 1895, did not in any manner affect the contract between the corporation and the defendant, or the right of said corporation to maintain its action in the courts of this state, and do not in any manner affect the right of the present plaintiffs, as successors of such corporation, to maintain this action. The respondent relies mainly upon Parker v. Lamb, 99 Iowa, 265, 68 N. W. 686; Seamans v. Zimmerman, 91 Iowa, 363, 59 N. W. 290; and Ayers v. Siebel, 82 Ia. 347, 47 N. W. 989. These cases do not sustain the position of the respondent, for the following reasons: First, the contracts sought to be enforced in the courts of Iowa were held to be void contracts; second, the officers who sought to maintain the actions were receivers deriving their authority from courts of foreign states; and, third, the law rendering the contracts void in the state of Iowa was in force at the time the contracts were made. In Parker v. Lamb, supra, the court, in speaking of the contract, says: ‘‘The contract of insurance, so far as the right of the company to insure property in this state is inyolv