66 Colo. 284 | Colo. | 1919
Opinion by
This is an action to recover an alleged balance due on the purchase price of goods sold and delivered. The plaintiff obtained judgment, and defendant brings error.
The plaintiff in error, defendant below, contends, in his brief, that the trial court had no power to enter judgment in favor of the plaintiff. This contention arises from the following facts: After a verdict was rendered for the plaintiff, the defendant in a motion for a new trial set forth alleged facts showing that plaintiff was a foreign corporation, doing business within this state, and had not complied
“The failure of a foreign corporation to comply with the law of the state before it may maintain an action goes to its capacity to sue, and, unless it complies with the law, it has no capacity to sue.”
• And in 30 Cyc. 98, it is said:
“If in fact the capacity (to sue) is lacking, the defect must be insisted upon, through proper pleadings in due season, by defendant.”
In the instant case, the defendant did not present, in due season or at the proper time, the issue or the fact of plaintiff’s noncompliance with the statutes, or its lack of capacity to sue, and under the authorities above cited, cannot be heard to raise this objection on this review.
Error is assigned to the trial court’s, overruling the motion for a new trial when, in connection with the motion, the fact of plaintiff’s noricompliance with the statutes was shown. No sufficient reason appears, either from the briefs or otherwise, for our holding that any error was committed in overruling the motion.
The judgment is affirmed.
Chief Justice Garrigues and Mr. Justice Bailey concur.