International Textbook Co. v. Holmes

[475]

LENNON, P. J.

The plaintiff in this action is a foreign corporation doing business in this state. The business of the plaintiff is that of teaching students by the correspondence method. The appeal was prepared and perfected under the new or alternative method from a judgment rendered in favor of the defendant in an action of claim and delivery wherein the plaintiff sought to recover the possession or the value of a certain lot of books. The books in controversy were delivered to various students of the plaintiff in the state of California, under the terms and conditions of a written contract. Subsequently the books were found in the possession of the defendant. The plaintiff’s complaint proceeded upon the theory that the possession of the books in question by the students was the plaintiff’s possession, and alleged that the defendant wrongfully and unlawfully took the books from the possession of the plaintiff and refused to return the same upon demand. The answer of the defendant denied the tort and pleaded in abatement the plaintiff’s noncompliance with the provisions of the Civil Code which require that before a foreign corporation may maintain a suit or action in any of the courts of this state, it must file with the secretary of state a certified copy of its articles of incorporation and a designation of a person upon whom process may be served. (Civ. Code, secs. 405, 408, 410.)

The judgment-roll is accompanied by a special and limited. transcription of the evidence taken upon the trial, that is to say, the transcript purports to show only so much of the evidence received upon the trial as relates to and bears upon two findings of the court below;—namely, the finding sustaining the defendant’s plea in abatement and the finding declaring that the property in suit had no value beyond its market value. But two points are made in support of the appeal; and they are:-—1. That the finding of value is contrary to the evidence; and,

2.

That the lower court erred in its conclusion of law that the plaintiff had no legal capacity to sue in this state because of the undisputed fact that it had failed to comply with the provisions of section 405 et seq. of the Civil Code. The condition of the record before us renders the two points stated unavailing to the plaintiff. In the first place, it is doubtful if the record shows any evidence to the effect that the books in question had a special value. In any event, the evidence upon that phase of the case is in substantial conflict