177 So. 593 | La. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *521 This is a suit on a promissory note. Plaintiff alleged that it is a Louisiana corporation with its domicile in Shreveport, Caddo parish, La., and the holder and owner of a promissory note for $2,184.32 with 8 per cent. interest from its date, made payable to it for a valuable consideration and executed by the defendant, Jas. W. Jones, Jr.; that said note was overdue and unpaid.
Defendant in limine filed a plea of lis pendens, and, in the alternative, filed exceptions of no right and no cause of action. Further in the alternative, he alleged that in case his pleas and exceptions were overruled, he was entitled to oyer of the note sued on. He filed also a motion to recuse the judge.
The court overruled the pleas and exceptions, as well as the motion to recuse, and ordered plaintiff to produce the note, which was done.
Defendant then filed answer, in which he admitted that he signed the note sued on, but alleged that "he is not indebted to the plaintiff company in any amount, which *523 will be more fully hereinafter shown," and that "he at no time owed plaintiff anything."
Article 8 of defendant's answer reads as follows:
"Further answering, respondent shows that he at no time owed the Shreveport Long Leaf Lumber Co. any amount and that the said note herein declared upon, while it was signed by defendant, was made and executed through error and without any consideration whatsoever, and respondent specially pleads failure of consideration, or lack of consideration in said note, and shows that same should be declared illegal, uncollectable and having been executed without any consideration should be returned to the maker, your respondent."
There was judgment in favor of plaintiff as prayed for, and the defendant appealed.
Article 491 of the Code of Practice says that:
"The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs."
The motion to discontinue takes effect the moment it is filed, without an order of dismissal by the court. Person v. Person,
It does not appear either from the wording of the exception filed or from defendant's brief that he intended to attack the corporate existence or capacity of the plaintiff. He says in his brief that there is no *525 allegation of plaintiff's "corporate existence." Defendant is in error. We quote the following from the petition:
"The petition of Shreveport Long Leaf Lumber Company, Inc., a Louisiana corporation, domiciled in the city of Shreveport, Parish of Caddo, State of Louisiana, herein represented by Tom S. Pittman, its duty authorized Vice-President with respect represents;"
That was a sufficient representation of plaintiff's corporate existence, and it was not necessary that plaintiff allege that it had authority to do business in this state and stand in judgment. The suit was brought, according to the petition, by a domestic corporation. The law confers upon domestic corporations the right to sue, to be sued and stand in judgment, and to transact business in the state. Act No. 250 of 1928, p. 409, which is an act "To provide for the Incorporation, Regulation, * * * of Certain Corporations for Profit," says in section 12 that any corporation formed under it or existing prior to its adoption "shall have the capacity to act possessed by natural persons," and authority (c) "to contract, sue and be sued in its corporate name" and (f) "to conduct business in this State."
While we do not think that either the wording of the exceptions or the specific statements in defendant's brief warrant the conclusion that he intended to attack the corporate existence or capacity of the plaintiff, yet if it be contended that defendant intended to do so, the answer to such contention would be that he is estopped *526
from denying plaintiff's capacity or existence because the note sued on, which defendant admits he signed, is made payable to the "Shreveport Long Leaf Lumber Company, Incorporated." He, therefore, knew he was dealing with plaintiff as a corporation and in its corporate capacity. Reynolds et al. v. St. John's Grand Lodge,
Plaintiff did not allege that it had paid the franchise tax levied by Act No. 10. First Extra Session of 1935. Hence the exception of no right of action, defendant's argument being that "the payment of a franchise tax is a condition precedent from year to year to the existence or continued existence of the corporation." Brief, p. 8.
Not the slightest basis for this argument is found in the act. It levies an annual franchise tax on all corporations for the privilege of doing business in this state and sets out the method of determining the amount of the tax and the machinery for collecting it. But nowhere in the act is it stated or intimated that the payment of the tax is a condition precedent to the corporation's engaging or continuing to engage in business. It is a revenue act pure and simple, the fund realized from the collection of the tax being dedicated to specific purposes. See section 11. Section 8 of the act provides that if the tax is not paid, a certificate to that effect made by the Secretary of State, showing the amount due, shall, when filed for record, operate as a first lien and privilege on all the property of the corporation, and that after fifteen days' notice to the tax debtor "the said Secretary of State shall cause the sheriff * * * to seize, advertise *527 * * * and sell" the property of the corporation for the payment of the tax. This is the penalty, and the only one, visited upon the corporation for its failure to pay the tax.
But even if it be true (and it is not), as counsel argues, that the payment of the tax is a condition precedent to the plaintiff's engaging in business, whether the tax is paid or not, and whether the corporation is unlawfully exercising corporate powers, are matters which concern the state and not the defendant; that is the state's business.
"If the state acquiesce in the usurpation of corporate powers, individuals cannot complain." New Iberia Sugar Co. v. LaGarde,
It is further alleged in this motion to recuse: "That the said Judge ad hoc has stated since the proceedings had in this cause and out of court, that he considered the exceptions and motions was (were) filed for the purpose of delay, all of which shows that the motions and exceptions were lightly considered, and the said judge ad hoc never having read the petition, the exceptions and pleas, and refusing to allow and consider briefs on either has completely denied your mover his day in court." *529
It is further alleged in the alternative "that the said Judge ad hoc has never taken the required oath as a special judge in this cause, and is not now under the oath required under the laws of this state."
The grounds for recusation set up in this motion are frivolous. The grounds for recusation are set out specifically in article 338 of the Code of Practice. Not one of the alleged causes set out in defendant's motion is included in that article of the Code. What this court said in State of Louisiana v. Louis Chantlain, 42 La. Ann. 718, 7 So. 669, 670, seems to fit the present case like a glove. The court in that case said:
"The Code of Practice (art. 338) is very explicit in defining and limiting the causes for which a judge may be recused. He can not be recused, nor, under article 340, can he recuse himself, for any other causes than those so specifically mentioned.
"The motion made by defendant sets forth no one of these causes. It was frivolous on its face, made only on the eve of trial, and could have no purpose or effect but to create delay."
"I understand that you wish me to advise what period of extension I wish to pay the note given for building material sold me by the Natchitoches Lumber Yard and on what terms of settlement.
"I feel that I can pay the ammount as follows — 50% in September and 50% in October 1935, and accordingly I understand that you agree to let the suit filed remain as it is now, without further action or prosecution of the suit until that date.
"Please advise me as to whether this will be acceptable.
"Yours very truly,
"Jas. W. Jones, Jr."
Defendant offered no testimony whatever. He admitted in answer that he signed the note sued on, but alleged that he did not then and never had owed the plaintiff anything. The answer was verified by defendant's personal affidavit, made before a deputy clerk of court. But he did not explain or offer to explain why he signed the note, if he did not owe the amount specified therein.
Judgment is affirmed, with all costs.
HIGGINS, J., takes no part. *531