Cleveland v. Gore Bros., Inc.

DESMOND, J.,

pro tem.

Defendants in this ease are stockholders of Ocean Park Realty Corporation, a California corporation. Plaintiff sought unsuccessfully to recover damages from them, under statutory liability, for an alleged tort, eviction of her assignor from leased premises. Prom the adverse judgment she now appeals, apparently, though not expressly stated, upon the ground that the evidence submit

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ted did not justify certain findings of the trial court and the .judgment based thereon.

In 1925, Ocean Park Realty Corporation leased to Dome Billiard

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Bowling Company, also a California corporation, certain real property for a term of twenty years. According to plaintiff’s complaint, and she sues as assignee of the Dome Billiard

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Bowling Company, the eviction which forms the basis of her action took place on July 31, 1930. Within three years thereafter, on July 15, 1933, this action was filed. At 6:00 P. M. of the Saturday preceding the first Monday of March, 1933, all the corporate rights, privileges and powers of Dome Billiard & Bowling Company, except the right to defend any action, had been suspended for failure to pay taxes and penalties imposed upon the corporation, the suspension continuing without interruption or revivor until May 10, 1934. Meantime, on November 29, 1933, defendants had filed an answer setting up the bar of the Statute of Limitations, section 338, subdivision 1, and section 359 of the Code of Civil Procedure; also, as a fourth separate answer and defense, alleging “that the franchise of said corporation was suspended by the Secretary of State of the State of California for non-payment of the franchise tax during the period from the 16th day of March, 1933, to and including the present time”; further, “that the above entitled action was filed on the 15th day of July, 1933, during the period that the franchise of said corporation was suspended by the Secretary of State of the State of California for non-payment of the franchise tax of said corporation.”

The trial court being satisfied upon evidence adduced, and stipulations as to facts entered into, that the allegations of this fourth defense were true, heard no evidence upon the matter of the claimed eviction or alleged resulting damages, as being immaterial, but made. appropriate findings upon the facts proved in regard to the suspension, and concluded among other things, “that plaintiff, Ada Cleveland, being the agent and trustee of and for Dome Billiard