Lincoln County Bank v. Fetterman

HENSHAW, J.

This action was brought against R. J. Pace, J. W. Pace, and Sid Pace upon their promissory note for three thousand five hundred dollars in favor of defendant George C. Fetterman. The complaint charged the execution of the note by the Paces to Fetterman and his indorsement of the note over to the plaintiff before maturity. It pleaded “that demand has been made by plaintiff upon the said defendants and each of them, for the payment of the amount due upon the said promissory note; that there has been paid plaintiff upon the principal sum of said note, the sum of fifteen hundred and twenty-six and 65-100 ($1526.65) dollars, and the interest thereon has been paid up to and including the twentieth day of June, 1911, leaving due and owing thereon to plaintiff from defendants, the sum of nineteen hundred and seventy-three and 35-100 ($1973.35) dollars, with interest thereon at the rate of one per cent per month from the twentieth day of June, A. D. 1911, until paid, and which amount, the said defendants and each of them, refuse and neglect to pay to plaintiff, although oft requested so to do.” Plaintiff is a Nevada corporation and the note was executed in the state of Nevada. Judgment passed for plaintiff, and defendant appeals from that judgment and from the order denying its motion for a new trial. Under the answer filed to this complaint the cause came on for trial. At the time of the trial defendant offered the following amendment:

“This defendant is informed and believes and upon such information and belief alleges the fact to be that plaintiff is

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doing business in this state and there has never been filed in the office of the secretary of state of the state of California, a designation by the plaintiff of some person residing within the state of California upon whom process issued by authority of or under any law of this state may be served; and there has never been filed in the office of the secretary of state of the state of California, a certified copy of plaintiff’s articles of incorporation, if any there are; or of its charter, if any it has; or of the statute or statutes, or legislative, or executive, or governmental act or acts creating it, if any there are, duly certified by the secretary of state, or other officer authorized by the law of the jurisdiction under which such corporation is formed, if formed at all, to certify such copy; and there has never been filed a certified copy thereof, duly certified by the secretary of this state, in the office of the county clerk of the county where its principal place of business is located and also where such corporation owns property.”