Tanneret v. Merchants' Mutual Ins.

Os Motion to Dismiss. The opinion of the Court was delivered by Bermudez, C. J. The plaintiff and appellee moves to dismiss this appeal on the following grounds : 1st. That the charter of the defendant company, the appellant, expired by law and by its own limitation, on the 31st day of March, 1879, the same having been restricted to twenty-five years duration, and being dated the 31st of March, 1851, as shown by the exhibit annexed to the motion; 2d. That the appellant has ceased to have any legal existence as a corporation, and has no legal representatives in this Court, who have capacity to stand in judgment in the premises ; 3d. That there are no legal representatives of said appellant, who can be made parties in this Court; 4th. That the judgment to bo rendered in this case would be invalid for want of proper parties. The counsel who have represented the defense in the lower court, and whose names are of record in this, have answered the motion, averring distinctly : 1st. That the charter of the defendant, copy of which is annexed to the motion of appellee, was extended by amendments adopted by the corporation and ratified by the stockholders on January 13,1879, a copy of which amendments, together with a statement of facts in reference thereto, is filed as part of the answer; 2d. That the validity of the extension of the charter of the defendant cannot be inquired into collaterally, or at the instance of any one, except the State of Louisiana ; 3d. That the appellee is precluded and estopped by his own conduct from inquiring into the existence of the defendant, as a corporation, or the validity of said amendment, as he has acquiesced in, accepted, and approved said extension of charter and .said amendment, by exchanging his seventy shares of stock, purchased on the 8th of April, 1879, for a new certificate, on June 1st, 1879, for forty-one shares, reduced in pursuance of the terras of said amendment, and voted at elections for directors, and received dividends on said new stock in the manner and under the circumstances set forth in said statement of facts ; [666] 4th. That if the defendant were a dissolved corporation, such dissolution is no valid ground for dismissal of the appeal herein taken. It is evident from the face of the motion and answer, that the merits of the application to dismiss cannot bo adjudicated upon by us, unless we take knowledge of evidence annexed to those pleadings, and which is altogether in pais and dehors the transcript. It may be true, that the charter of the company has expired, as is stated by the appellee, but it would not follow from the circumstance that it has ceased to be a “ going corporation,” that it is not represented by parties concerned in the liquidation of its affairs. It may have lost its corporate name, lost its board of directors, lost its other officers, lost a right to sue and be sued, after such dissolution, but all those who must have bad an interest in its affairs — creditors and stockholders— have nevertheless become the quasi owners, en masse, of its assets, of any nature or description, and, in point of fact, unquestionably represent the dofunct corporation. It may be, if it be true that the charter has expired, that they have a common representative, a liquidator or some such functionary, but of this we have and can have no knowledge at this stage of the proceeding and under the showing made. When a party dies pending an appeal, his legal representatives are to be connected by the proper process with the matter before the Court, and it is not until after this has been doDe that the suit can be proceeded with. An action, it is well settled by law and jurisprudence, does not abate, in this State, by the death of one of the parties, after answer filed. C. P. 120-21. Vide authorities collected on that subject in H. D. 1136, L. D. 532. There is no good reason why, on the same principle, the rule should not be, in the absence of formal legislation, extended to suits by and against corporations, for indeed, interest reipublicce ut sit finis liiium. Neither in the case of the death of one of the parties litigant, nor in that of the extinction of a corporation, whether by limitation of its charter, or judicial forfeiture of its charter, or otherwise, does the law require a revival of the suit, or a vivification of the defense. All that has to be done is that the legal representative of the decedent, or dissolved corporation, become a party, voluntarily, or at the instance of the other litigant whose interest may demand such proceeding. It is well settled that the neglect of corporators to re-appoint officers may suspend the action of the corporation, but that such omission cannot extinguish the organization to the injury of creditors. A corporation cannot be dissolved so as to defeat the rights of creditors. 3 A. 177; 2 A. 573. [667] If this be true, why should in such eventualities, creditors be permitted to benefit themselves to the injury of others, likewise, and perhaps more deeply interested in the concern ? On the other hand, it is probable that, although the charter of the company may appear to have expired as averred by the appellee, the fact may not be so in reality. The stockholders may well, in view of such expectation, have provided against the same, and it is reasonable to suppose that they have done so, in some substantial manner, ample and sufficient, in their mind at least. They may long before the date of expiration have thought themselves authorized to extend their charter for a term, which added to that which it had to run, would not exceed twenty-five years, and if such an extension was not strictly regular, it is possible that it may'have been deemed as creative of a new charter of a new corporation, acquiring all the rights and assuming all the obligations of the former organization. The same counsel who defended the case in the lower court are before us to-day, and affirm that their client is not only not defunct, but is full of life, happy, prosperous, and content, and even sanguine of final success in this very litigation. The Court must look to its officers with trust and confidence, and will lend a favorable ear to their solemn professional answers, as long as the same are not unquestionably overbalanced by counter indisputable evidence. If such facts have occurred, the course pursued might be sanctioned or discountenanced by law, but with such contingencies wo have no authority to deal presently. The defense of estoppel, by reason of acquiescence on the-part of the appellee, in the organization which, it is said, represents, or is, the defendant in this case, is one which cannot become operative unless maintained by evidence. We cannot enter upon an investigation of the matters of fact set up by counsel without assuming an original jurisdiction which properly vests in another tribunal. It makes no difference that a statement of facts was agreed upon and is before us. We cannot transgress the constitutional limitation of our powers. If we were to dismiss the appeal in this case, because the defendant corporation is extinct and unrepresented here or elsewhere, the embarrassment of the plaintiff in the levy and execution of his writ for money against the assets of the defunct company, which no curator ad hoc could represent, can be easily conceived. It is to the interest of both that he should fail in his attempt here. The question which we are desired to solve may arise under more proper proceeding in the lower court, for the execution of the judgment [668] in this case and the adjudication made on the issue presented oould be on appeal only revised by this Court. Leaving the appellee free to inaugurate such course as to him may appear most conducive to the object which he has in view, but without prejudicing him in the least in that direction, we are constrained to decline to entei t tin his application. The motion to dismiss is refused with costs. Rehearing refused.