171 Mo. App. 49 | Mo. Ct. App. | 1913
This is a suit on a judgment. The finding and judgment were for plaintiffs and defendant prosecutes the appeal.
Plaintiffs ’ predecessor in right recovered the judgment in suit in the circuit court of Clark county on November 19, 1890, in the sum of $1963.77, against the Egyptian Levee Company, a corporation formed and existing at the time by virtue of an act of the Legislature passed February 27, 1855. The Egyptian Levee Company was incorporated under this act for the purpose of reclaiming and protecting from overflow about 11,000 acres of land in Clark county lying between the Des Moines and Fox rivers and near the Mississippi. [See Session Acts 1855, page 73; Local Laws and Private Acts, 1855, page 281.] During the existence of this corporation, which continued active until shortly before the defendant was organized in 1903, it contracted the indebtedness which was reduced to judgment in November, 1890, as above stated. The judgment was not paid by the Egyptian Levee Company and it appears that corporation ceased its activities before the defendant was organized.
The Egyptian Levee Company was authorized by the’act of incorporation to exercise the power of emi
It appears that several years after plaintiffs’ predecessor in right recovered the judgment in suit against the Egyption Levee Company, the board of directors of that company refused to meet and further conduct its affairs or utilize the corporate franchises' which it enjoyed. Shortly thereafter, on December 28, 1903, defendant, Des Moines & Mississippi Levee District No. 1, was organized by a decree of the circuit court of Clark county, under the general statutes of Missouri touching such matters — that is to say, under article 7, chapter 122, Revised Statutes of Missouri, 1899. (The same is now Art. 9, chap. 41, R. S. Mo. 1909.) Defendant, Des Moines & Mississippi Levee District No. 1, so incorporated in 1903 under the general statutes, was created for identically the same purpose as the prior corporation, Egyptian Levee Company, against which the judgment in suit was then outstanding and unpaid. Furthermore, the new corporation, or defendant levee district, included precisely the same lands, territory and inhabitants as the old one, and exercised the same powers with respect to levying and collecting taxes for the same purposes.
In the proceedings had with respect to the incorporation of defendant levee district in 1903, the board of supervisors of the new district appointed three dis
Though the old Egyptian Levee Company has never been dissolved by an act of the Legislature, or otherwise formally declared out of existance, plaintiffs prosecute this suit against defendant- — that is, the succeeding or new corporation — to recover the amount of the indebtedness owing to them by virtue of the judgment against the prior Egyptian Levee Company, on the theory that it is in fact the successor as a continuation of the prior levee company and in which the prior levee company, together with all of its assets, is merged.
It is argued on the part of defendant that the recovery may not be sustained against it for the reason that it does not appear that the prior Egyptian Levee Company had been dissolved and no longer exists. But we are not so persuaded. While it is true that the prior levee company was not dissolved by a formal act of the Legislature, or otherwise, if it were possible to otherwise dissolve it, it appears beyond question that that company ceased active operations after plaintiffs’ judgment was recovered and shortly before defendant, or the new levee company, was incorporated.
In such circumstances, it is competent for the court to treat the old corporation as defunct, though it in fact still exists; for the grant of power and franchises is to the inhabitants of the incorporated territory rather than to the dry shell of the corporation, and these franchises are being utilized each day for the benefit of the same inhabitants as under the old corporation. In other words, because of the voluntary nonuser of the franchises on the part of the old company and their exercise by the new company, the matter amounts in law to a continuation of the old cor
But defendant insists that a recovery on the judgment in suit is barred by the Statute of-Limitations. The judgment was recovered on November 19, 1890, in the sum of $1963.77 against the Egyptian Levee Company and together with accrued interest and costs now amounts to nearly $5000. At the time this judgment was recovered, the statute prescribed a limitation period of twenty years as to such judgments, but in 1895, or about five years after the recovery of the judgment, the limitation statute was amended and the period of limitation theretofore.prescribed at twenty years was fixed by the amendment at ten years instead. [See Laws 1895, p. 221; and, as amended, see Sec. 1912, R. S. 1909.] The amended statute contains no words suggesting that it should be retroactive in its operation. Furthermore, it makes no provision as to a reasonable time for suits on judgments recovered prior to its enactment. This suit was instituted against defendant on the judgment December 7, 1905, or fifteen years after the judgment was recovered, and more than ten years after the Statute of Limitations was amended reducing the period of limitations from twenty years to ten. It is argued by defendant that though it be conceded the statute is not retroactive in its operation, a recovery on the judgment is nevertheless barred by the amended statute for the reason
The judgment should be affirmed. It is so ordered.