Morris-Roberts Co. v. Mariner

STEWART, 'J. This action was instituted by the respondent, Morris-Roberts Company, a corporation organized under the laws of the state of Wyoming, having its principal place of business at Bliss, Lincoln county, Idaho, against the defendants, A. M. Mariner, Frank S. Rayburn and the Bliss Townsite Company, a corporation organized under the laws of the state of Idaho. The purpose of the action was to establish a trust in a portion of the premises involved, consisting of about three acres of ground, and for general equitable relief. The defendant Rayburn was never served and made no appearance. Charles B. Amos, one of the appellants, by leave of court filed a complaint in intervention, and alleged he was the owner of the east half of the southeast quarter of section 6, township 6 south, range 13 east, B. M., with the exception of an acre on which the sehoolhouse was located, and the Oregon Short Line right of way; that the eighty acre tract described is the townsite of Bliss, and includes the three acre tract claimed by respondent, as well as the balance of the tract claimed by appellant Bliss Townsite Company, and in the cross-complaint prays that his title be quieted in said land. Answers were filed to the complaint in intervention, denying the intervenor’s title, and the appellant Mariner alleged affirmatively that she had conveyed the property to the Bliss Townsite Company on April 9, 1910, and alleged that it secured a warranty deed for valuable consideration from appellant Mariner on said date. Upon these issues the cause was tried. The trial court made certain findings of fact and conclusions of law, but we shall refer only to those findings which appear to be involved upon this appeal: — 793 — Findings of Fact: That the plaintiff is a corporation duly organized under the laws of Wyoming; that on the 13th day of January, 1905, the plaintiff filed with the Secretary of State of Idaho its designation of agent and acceptance of the provisions of the constitution of the state of Idaho, designating therein Lincoln county as the county in which the principal place of business should be conducted, and designating P. E. Dusalt, residing in said county, as its agent, upon whom process could be served; and filed a duplicate of said designation in the office of the county recorder of Lincoln county on January 11, 1912; that on the 13th day of January, 1905, a copy of the articles of incorporation was filed by the plaintiff in the office of the Secretary of State of Idaho; that on the 11th of January, 1905, a copy of the articles of incorporation was filed in the office of the county recorder of Lincoln county; that a copy of the articles of incorporation of the plaintiff, duly certified by the Secretary of State of Wyoming was filed in the office of the county recorder of Lincoln county, state of Idaho, on June 26,1911, and filed in the office of the Secretary of State on July 3, 1911, which bore the certificate of the county recorder of Lincoln county, under date of June 26, 1911. Conclusions of Law: That the plaintiff is the owner of the lands described in the complaint, and that any title or interest therein or thereto which the said defendants, or either of them, hold is held by such defendants in trust and for the use and benefit of the plaintiff, and that the defendants or the said intervenor have no beneficial interest therein or thereto or to any part thereof; that the plaintiff is entitled to a decree requiring the defendants, and each of them, and the intervenor to execute a good and sufficient deed conveying to the plaintiff the legal title to the said premises and the whole thereof clear from encumbrances; that the defendant, the Bliss Townsite Company, a corporation, is entitled to a decree that it is the owner in fee simple of certain premises described in the findings of the court, and a decree quieting in said Bliss Townsite Company the title to said premises as against the plaintiff and intervenor and all persons claiming by, — 794 — through or under them, or either of them. A judgment was rendered in accordance with the findings'of fact and law above referred to. ■ Defendants Mariner and Bliss Townsite Company jointly appeal from the part of the judgment adverse to them (which is specified). Charles B. Amos, intervenor and appellant, separately appeals from the judgment and decree entered on the 24th day of June, 1912, and from the whole thereof. The first question presented to this court for determination is a motion filed upon behalf of Ada M. Mariner and the Bliss Townsite Company to dismiss the appeal attempted to be taken by the appellant and intervenor, Charles B. Amos. The grounds of such motion are as follows: First, that the intervenor failed to take the steps required by law in order to perfect his appeal; second, that the appellant Amos has not complied with sec. 4434, chap. 119, Laws of 1911, p. 379, in that such appellant failed to procure from the district judge an order directing the reporter to prepare any transcript of the testimony and proceedings and failed to file any such order with the clerk of the district court, and failed to serve copy of such order upon the reporter of said district,, court and failed to pay the reporter for the same; fourth, that said Amos filed a notice of appeal on August 23, 1912, and such notice was served on Ada M. Mariner and the Bliss Townsite Company, and on the same day Mariner and the Bliss Townsite Company, through their counsel, requested said Amos, through his attorneys, Richards & Haga, to join in the expense and preparation of a transcript, and on August 27th the attorneys for Amos agreed to the same, and thereafter on August 31, 1912, the attorneys for Amos withdrew from said agreement and recalled the order for transcript of the evidence and for a transcript of the record, and declined to join in the transcript, and waived the appeal of Amos in said cause; fifth, that Amos, appellant, failed to file a supplemental transcript in said court within sixty days after filing the undertaking on appeal as required by rule 23 of said court; that said undertaking on appeal was filed on August 28,1912, and the said supplemental transcript was not filed until the 29th day of October, 1912, — 795 — and no service thereof was had upon the defendants A. M. Mariner and the Bliss Townsite Company, otherwise than by mail, and transmitted on the 30th of October, 1912. The foregoing motion to dismiss the appeal of the intervenor and appellant Charles B. Amos is sustained. The record shows that Amos filed a notice of appeal on August 23, 1912, and on the same day a notice of appeal was filed and served by Mariner and the Bliss Townsite Company, defendants and appellants, and on the same day Mariner and the Bliss Townsite Company, through their counsel, requested Amos, through his attorneys, to join in the expense and preparation of the transcript. On August 27, 1912, Amos, by his attorneys, agreed to join in the expense and preparation of the transcript. Thereafter on August 31, 1912, Amos, by his attorneys, withdrew from said agreement and recalled the order for transcript of the record and declined to join in the transcript, as shown by an affidavit filed by Harry "W. Anderson, clerk of the district court of Lincoln county, and as a part of said affidavit a letter was attached dated August 31, 1912, signed by Richards & Haga, attorneys for Amos, in which said attorneys stated: “As there seems to be a possibility that the appeal of the intervenor in the case of Morris-Roberts Co. v. Mariner will be dismissed, we would ask you to do nothing further with the transcript unless you hear from us. If any expense has been incurred so far kindly let us know, and we will be glad to remit at once. We would also appreciate it if you would advise the court reporter that we desire him to do nothing further with the transcript of the evidence until he hears from us. Very truly yours, “RICHARDS & HAGA.” The clerk also in his affidavit states that subsequent to the above cancelation of the order for a transcript, he received-no further order to prepare a transcript, except a letter addressed to him dated on or about October 9, 1912, directing the preparation of a supplemental transcript.. The supplemental transcript referred to consists only of a certified copy of the notice of appeal signed by Richards & Haga, attorneys for the intervenor, and the undertaking given by said intervenor upon — 796 — appeal. No other papers or record were included in said supplemental transcript. The notice of appeal bears upon its face no evidence that the same was ever served upon any of the adverse parties to said action, and the certificate of the clerk in no way refers to the transcript which was formerly furnished to the appellants Mariner and the Bliss Townsite Company. The appellant Amos, therefore, has no interest in the appeal taken in this ease by Mariner and the Bliss Townsite Company. Neither did Amos join with such parties in their appeal, nor did he in any way contribute to the expenses of the record, and he in no way took part in its preparation. So far as Amos is concerned, there is no record before this court which presents any question for consideration. It is clear from the record that Amos declined to join with the other appellants in the appeal, and he cannot now, upon the appeal taken by Mariner and the Bliss Townsite Company, ingraft his appeal upon the transcript prepared by such appellants and paid for by them. Inasmuch as the supplemental transcript fails to show any service and is insufficient to present any question for consideration, such appellant has no standing in this court. It was intended by sec. 4434, Rev. Codes, as amended, Laws of 1911, p. 379, that any party desiring to procure a review on appeal of any ruling of the district court or the sufficiency of evidence to sustain the verdict or decision shall procure a transcript of the testimony and proceedings including the instructions given or refused, and exceptions thereto, on the trial, or such part thereof as may be necessary, in the following manner: He shall first procure from the district judge an order directing the reporter to prepare the transcript and he shall then file the order with the clerk of the court and serve a copy thereof upon the reporter, “paying to him at the time such sum as he shall demaoid, as the estimated cost of transcribing such part of his notes and other proceedings as may be desired at the rate of ten cents per folio of one hundred words.” This statute permits any party desiring a review to take an appeal and procure a transcript by paying the reporter for the same. It was not, however, intended by the legislature that — 797 — where separate appeals are taken by different parties to the action, and one of the parties secures a transcript of the reporter’s notes under the statute, and pays for the entire transcript, and the other appellants refuse to secure a transcript from the reporter, or pay their proportion of such expenses, that such appellants can take advantage of the record secured and paid for by the single appellant or can base their appeals upon said transcript, which was not secured by them as provided by see. 4434, Rev. Codes. For the reasons stated the appeal of Charles B. Amos is dismissed. The first question upon which a reversal is urged is presented in assignments of error Nos. 6, 13, 14, 28, 31 and 32. These several errors relate to the same subject and that is the admission in evidence of certain exhibits, “H,” “I,” “J” and “K,” which relate to the steps taken by plaintiff in attempting to comply with the laws of the state governing foreign corporations as assigned in error 13, and also assignment of error No. 14, to the effect that the evidence was insufficient to support the first finding of fact which recites the steps taken by the plaintiff and respondent, Morris-Roberts Company, a corporation, in complying with sec. 2792, Rev. Codes, which provides: “Every corporation .... must .... file a copy of the articles of incorporation of said corporation (that is, a corporation not created under the laws of this state) duly certified to by the Secretary of State of the state in which said corporation was organized.” This section of the statute requires that every foreign corporation must, “before doing business in this state, file with the county recorder of the county in this state in which is designated its principal place of business in this state, a copy of the articles of incorporation of said corporation, duly certified to by the Secretary of State of the state in which said corporation was organized, and a copy of such articles of incorporation duly certified by such recorder with the Secretary of State.....Such corporation must .... designate some person in the county in which the principal place of business of such corporation is conducted, upon whom — 798 — process issued by authority of or under any law of this state may be served, and .... must file such designation in the office of the Secretary of State, and in the office of the clerk of the district court for such county. ” It is also provided by such act that “no contract or agreement made in the name of, or for the use or benefit of, such corporation prior to the making of such filings as first herein provided, can be sued upon or enforced in any court of this state by such corporation.” This section was enacted by the legislature for the purpose of carrying out the provisions of sec. 10, art. 11 of the constitution, and is clearly within the provisions of the constitution. This court has in many cases passed upon this section, and universally held that the provisions with reference to the qualifications of a foreign corporation to do business in this state are mandatory, and that they must be substantially complied with in order to enable such corporation to maintain an action in the courts of this state for the enforcement of contracts. These cases are cited in the opinions of this court in the cases of Kiesel v. Bybee, 14 Ida. 670, 95 Pac. 20; Tarr v. Western Loan & Savings Co., 13 Ida. 741, 99 Pac. 1049, 21 L. R. A., N. S., 707. Turning, now, to the record in this ease, we find that the respondent company signed the articles of incorporation on the 22d of December, 1904, and filed the same with the clerk of Sweetwater county, Wyoming, on the same day. The articles of incorporation of said company were filed in the office of the Secretary of State of the state of Wyoming on the 28th of December, 1904. On December 23, 1904, P. E. Dusalt, county clerk of Sweet-water county, certified the articles of incorporation to be a true copy of the original certificate of incorporation “so full, true and complete as the same now appears before me, and of record in my office.” On January 4, 1905, such copy, so certified by Dusalt, was filed with the recorder of Lincoln county, Idaho, and the same was also filed with the Secretary of State on January 13, 1905, It will be observed from this record that the foregoing record is the complete record of the acts of the respondent company — 799 — in attempting to comply with the laws of the state of Idaho at the time the transactions involved in this suit occurred. It will be observed, also, that the copy of the articles of incorporation filed in Lincoln county and also the copy filed with the Secretary of State of the state of Idaho were not certified by the Secretary of State of the state of Wyoming, and were only certified to by the county clerk of Sweetwater county, Wyoming. After the transactions in controversy had been had, and after the plaintiff’s capacity to sue had been challenged, the respondent again attempted to comply with the laws of the state of Idaho on June 26, 1911, by filing with the county recorder of Lincoln county a copy of the articles of incorporation of respondent certified to by the Secretary of the State of Wyoming. Referring to the record again, we find that on December 28, 1904, articles of incorporation were filed by the respondent with the Secretary of State of Wyoming, and that on January 3,1905, a copy of said articles was certified to by the Secretary of State of Wyoming, and on June 26, 1911, said copy was filed with the county recorder of Lincoln county, Idaho, and on July 3,1911, such copy was filed with the Secretary of State of the state of Idaho. It thus appears from this record that the only articles of incorporation filed in Idaho prior to the time of the transactions and contract involved in this case was a copy certified to by the county clerk of Sweetwater county, Wyoming. This certificate was executed on the 23d of December, 1904, which was five days prior to the filing of such articles with the Secretary of State of Wyoming. Thus it will be seen that the articles of incorporation on file in Idaho at the date of the transactions involved not only lacked the certificate of the Secretary of the State of Wyoming, but were issued also and certified to by the county clerk of Sweetwater eounty, Wyoming, five days prior to the completion of the incorporation of the plaintiff, and five days prior to the date when a. copy could have been certified to by the Secretary of the State of Wyoming. So at the time of the transactions in controversy, and alleged in the complaint, the respondent company had not designated — 800 — its principal place of business in this state by filing with the clerk of the county a copy of the articles of incorporation of said corporation, duly certified to by the Secretary of State of the state in which said corporation was organized. Neither were such articles of incorporation, certified by the county recorder of Lincoln county, filed with the Secretary of State. Neither had such corporation, from the time it began and concluded the transactions set forth in the pleadings in this case, designated the person in the county in which the principal place of business of such corporation is conducted upon whom process could be served. The only conclusion that this court can reach in this matter under the facts stated and the decisions of this court heretofore cited is, that the plaintiff and respondent, -being a foreign corporation, has not substantially complied with the constitution and the statutes of this state governing foreign corporations doing business in this state, and therefore cannot maintain a suit in any of the courts of this state for breach or violation of a contract entered into during the time the corporation has failed to comply with the laws of the state. It must necessarily follow from what has been said in this opinion that because of the noncompliance of this plaintiff with the laws of this state, it cannot maintain this action. We respectfully call the attention of counsel and the parties to this action to the fact that in the foregoing opinion this court has in no way discussed or determined the validity of the transaction alleged in the complaint as the cause of action. This court in the case of Valley Lumber etc. Co. v. Driessel, 13 Ida. 662, 93 Pac. 765, 15 L. R. A., N. S., 299, 13 Ann. Cas. 63, calls attention to the case of Katz v. Herrick, 12 Ida. 1, 86 Pac. 873, and says: “In the course of that opinion, the court said: ‘Courts of equity are always able to protect innocent and honest persons in legitimate transactions, and we are satisfied that the courts of this state can and will protect all persons who have had honest dealings with noncomplying foreign corporations where they deserve protection.’ ” The statement of this court, as above, would seem to hold that there is a remedy which may be pursued in the courts which will protect all persons who have had honest dealings with noncomply — 801 — ing foreign corporations, where they deserve protection, and there can be no question in this case from the record but that any party who claims an interest in the property in controversy may bring action to quiet title, and bring in all the parties who claim an interest in said property, and that in said action the rights of every person who has an interest in the title to said property can be determined. (November 6, 1913.) [135 Pac. 1170.] 1. Held, in this case, that where there is substantial evidence supporting the verdiet and judgment rendered, the verdict and judgment will be. affirmed. The judgment is reversed, and the trial court is directed to dismiss the action. Costs awarded to appellants. Ailshie, C. J., and Sullivan, J., concur.