43 So. 190 | Ala. | 1907
Nicholas Colias and Christo Jebeles, during the year 1900 and for some time prior thereto, did a general mercantile business in the city of Birmingham as partners under the firm name and style of “Jebeles & Colias.” The petition shows that on the 4th day of December, 1900, while they were doing business under said firm name, they, together with one S. Oianoakos, filed their application in writing in the office of the probate judge of Jefferson county, praying to be incorporated under the name of “Jebeles & Colias Company.” On the 6th of December, 1900, the probate judge issued a certificate of incorporation in which it was recited that upon the written application of the parties above named they had been incorporated under the name and style of “Jebeles & Colias Company.” Section 1286 of the Code of 1896 is in this language: “No certificate of incorporation shall issue to any corporation under the same corporate name as that already assumed by another corporation of the state unless it be the successor of such other corporation; nor when the corporate name assumed is that of a person or firm, unless there be joined thereto some word designating the business to be carried on, followed by the word 'company’ or 'corporation.’ If any corporation shall hereinafter assume as its corporate name, the name of a person or firm without the qualification above required in such case, the organization of such corporation is void, and the stockholders are liable as partners.”
It will be observed that the certificate of incorporation, when compared with the statute, is defective in failing to use some word before the word “Company,” designating the business to be carried^ on. Section 1282 of the Code of 1896 is in this language: “When any private
The insistence of the relator is that the initial effort to incorporate was, on account of the omission pointed out, absolutely void, and, being so, it was incapable of being corrected, notwithstanding the provisions of section 1282. The Supreme Court of the United States, in passing upon the meaning of the words “void and of no effect,” uses this language: “But these words are often used in statutes and legal documents, * * * in the sense of Voidable’ merely — that is, capable of being avoided1 — and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, in
Sections 1282 and 1286 of our Code of 1896 are embraced in article 12 of chapter 28, are pari materia, and must be construed with reference to each other. So construing them, and in the light of the foregoing authorities, it seems to be clear that the word “void,” as used in the latter section, means “Amidable”; in other words, the Avord “Amid” does not carry with it the meaning that the proceeding to incorporate Avould be void in such a sense that they could not be rendered valid by proceed
The application in this case was filed long after the defect in the proceedings had been cured; and, construing the averments of the petition together, it fails to show that the respondents are exercising franchises and privileges not conferred on them by law, or that they are not legally incorporated. It follows that the judgment of the court below must be affirmed.
Affirmed.