State ex rel. Lawrence County v. Grier Land & Mining Co.

154 Mo. App. 389 | Mo. Ct. App. | 1911

NIXON, P. J.

This was an action instituted in the name of the state at the relation of Lawrence county to recover of the defendant corporation the penalty imposed by section 1017, Revised Statutes 1899, for failing to report to the Secretary of State “the location of its principal business office, the name of its president and secretary, the amount of its capital stock, both subscribed and paid up, the par value of its stock and the actual value of its stock at the time of making said report, the cash value of all its personal property and of all its real estate within this state on the first day of June immediately preceding, and the amount of taxes, city, county and state, paid by the corporation for the year last preceding the report,” as prescribed in section 1013, Revised Statutes 1899.

The petition is in two counts, the first count for the penalty which accrued on the last day of September, 1909, and the second count for the penalty which accrued on the first day of October, 1909. The petition was filed on October 4, 1909, in vacation. The case was tried by the court on an agreed statement of facts, as follows: “That the plaintiff’s evidence will show that the defendant is a corporation as alleged in the petition, of Lawrence county, Missouri, and that at the time and times mentioned in the first and second counts of the petition it had not filed with, the Secretary of State the report mentioned in said petition as required by section 1013, Revised Statutes 1899. .That for the defendant it will show; That the officers of the defendant had overlooked the filing of said report and the same was filed with the Secretary of State about the middle of October, 1909, and that’ the blank reports required to be furnished by the Secretary of State were received by the officers of the defendant before the middle of October and were placed in a desk and overlooked until that time, and that there was no intention on defendant’s part to violate the law in failing to file said reports.” The court made the finding of facts that the suit was not instituted by-the prosecuting attorney “at the first court term following the receipt by him of the report from the Secretary of State nor has the state shown compliance with the conditions named in the statute creating the cause of action.” “And the court finds that in failing to comply with the conditions named in the statute creating the right, of action, the state is not entitled to recover in this action and the finding of the court is in favor of the defendant.” The following declaration of law was given: “The court declares the law to be that • unless it finds from the evidence that the prosecuting attorney, of Lawrence county, in his official capacity, at the first court term after he received the report from the Secretary of State, informing him of the failure of the defendant to file the statement required by section 1013, Revised Statutes 1899, instituted proceedings in accordance with section 1017, Revised Statutes 1899, to recover the penalties therein provided for, its judgment will be for the defendant.” Judgment was entered for defendant and the relator has appealed.

Section 1017, Revised Statutes 1899, provides: “. . . and it is hereby made the duty of the Secretary of State, as soon as practicable after the first day of September in each year, to report to the prosecuting attorney of the county in -which any such delinquent corporation may be located, the fact of its failure to make the required report, and the prosecuting attorney shall, at the first court term after he receives the report from the Secretary of State, institute proceedings in the name of the state, at the relation of the county, to recover the fine or fines herein provided for, . . . .”

This section provides that for the failure to make the report the corporation shall be subject to a fine of not less than fifty nor more than one thousand dollars for each offense, and that each succeeding thirty days of such failure shall constitute a separate offense and be subject to a like fine. That this statute is highly penal in its nature is apparent. This being true, it should of course, be strictly construed “and applied only to such cases as come clearly within its provisions and manifest spirit and intent.” [Cowan v. Telegraph Co., 129 S. W. l. c. 1067; Connell v. Tel. Co., 108 Mo. 459, 18 S. W. 883; Wagner v. Tel. Co., (decided at this term of this court); Bradshaw v. Tel. Co., 131 S. W. 912; State ex rel. v. Railroad, 131 S. W. 161.]

Ordinarily a suit is instituted by the plaintiff filing in the office of the circuit clerk his petition and by the clerk issuing a summons. The statute (section 566, Revised Statutes 1899) provides: “Suits may be institued in courts of record, except where the statute law of this state otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff’s cause of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second, by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall be taken and deemed the commencement of a suit.”

The objection that the suit was not “instituted at the first court term, but was institued in vacation before said term commenced, goes only to the jurisdiction of the first court term, but was instituted in vacation before not now available to it. At the return term, or the next term of court respondent appeared and filed the following answer: “Comes now the defendant and for answer to the petition filed herein, admits that it is a corporation, organized under the laws of the State of Missouri, but denies each and every other allegation in said petition contained. Wherefore, having answered herein, it asks to be dismissed with its costs.” It is to be observed that this answer is in the nature of a plea to the merits and not to the jurisdiction of the court. By such an answer, the defendant voluntarily waived the issuance of any process, entered its general appearance, and the suit became to all intents and purposes thereby properly instituted and defendant waived the defects as to the manner of instituting the suit. [Lewis v. Nuckolls, 26 Mo. 278; Hembree v. Campbell, 8 Mo. 572; Brown v. Woody, 64 Mo. 547.]

It follows that the judgment should be reversed and the cause remanded and it is so ordered.

All concur.