Ontario State Bank v. Tibbits

Vanclief, C. This action was to foreclose a mortgage executed by the defendant Amelia Tibbits to secure her promissory note to the plaintiff, a corporation organized under the laws of this state. The court below found that the note and mortgage were made and executed as alleged in the complaint, and that no part of the debt had been paid, but dismissed the action solely upon the ground that the plaintiff had never filed in the office of the county clerk of San Bernardino, in which the mortgaged property was situated, a copy of the copy of its articles of incorporation, as required by section 299 of the Civil Code, which section, in effect, provides that no corporation organized under the laws of this state shall maintain or defend any action in relation to property, or its rents, issues, and profits, until it shall have filed in the office of the county clerk " of the county in which such property is situated,” such copy of the copy of its articles of incorporation filed in the office of the secretary of state.

Although the complaint did not show that plaintiff had complied with this law, it nevertheless stated a complete cause of action. (Phillips v. Goldtree, 74 Cal. 151.)

The failure of the plaintiff to file a copy of its articles of incorporation in the office of the county clerk, being [70]mere matter of abatement, should have been specially pleaded by the defendants, otherwise it was waived; yet the answer tendered no such issues. (Sweeney v. Stanford, 67 Cal. 635; Phillips v. Goldtree, 74 Cal. 151; Southern Pacific R. R. Co. v. Purcell, 77 Cal. 69. ) And the pleading thereof should be strictly construed. (Tooms v. Randall, 3 Cal. 440; Thompson v. Lyon, 14 Cal. 42; Larco v. Clements, 36 Cal. 132.)

The only affirmative matter contained in the answer is the following:—

“ For a separate answer and defense, this defendant avers that plaintiff has not, and at the commencement of this action had not, legal capacity to sue; that plaintiff never was a corporation duly or otherwise organized under the laws of this stfite, nor a copartnership, nor an individual.”

That the plaintiff had not legal capacity to sue is purely and only a conclusion of law, and of itself tent dered no issue of fact. The only issues of fact tendered by this plea related to the nature of the plaintiff, viz., Was the plaintiff a corporation ? or a copartnership? or an individual person ? Upon these issues the court found for the plaintiff, to the effect that the plaintiff, at all the times mentioned in the complaint, was, and still is, a corporation.