California Savings & Loan Society v. Harris

California Supreme Court Jan 28, 1896 No. Sac. No. 65Published

Before: Harrison

AI Brief

AI-generated · verify before citing

Holding. A corporation's failure to file its articles of incorporation as required by Civil Code section 299 is a matter in abatement that does not defeat the cause of action, and the defense is rendered unavailing if the corporation complies with the filing requirement before the plea is filed.

Issues

Whether a corporation's failure to file its articles of incorporation in a county where it holds property precludes it from maintaining an action to foreclose a mortgage.
Whether the defense of non-compliance with Civil Code section 299 is a plea in abatement that must exist at the time the plea is filed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The failure to file this certified copy does not impose upon the corporation a loss or forfeiture of its property, or impair or deprive it of any cause of action or defense it may have in reference to such property.”

“Nor does such failure afford to the other party any defense to the cause of action upon which a suit has been commenced, but is merely a special defense in the nature of a plea in abatement”

“To maintain an action is not the same as to commence an action, but implies that the action has already been commenced.”

Synopsis

Corporations—Action Respecting! Property—Failure to File Copy oe Articles—Plea in Abatement—Waiver.—A noncompliance with section 299 of the Civil Code requiring every corporation to file in the office of the clerk of any county in which it holds any property a certified copy of the copy of its articles of incorporation filed in the office of the secretary of state, under penalty of not being able to maintain or defend any action or proceeding in relation to such property until such copy be filed, does not impose upon the corporation a loss or forfeiture of its property; nor is a compliance therewith essential to a cause of action, or a jurisdictional element in the suit; but a failure to comply with the statute is merely ground for a plea in abatement, which may he and is waived unless it is affirmatively pleaded.

Id.—Filing Copy after Suit, and before Plea—Maintenance of Action.—-Where the properly certified cop)' of the articles of incorporation is filed in the county where the property affected by a suit in favor of the corporation is situated, though such filing be after the commencement of the suit, but before the filing of a plea in abatement of the suit upon the ground that it was not filed, such plea thereafter interposed is unavailing to prevent a further maintenance of the action.

Id.—Pleas in Abatement not Favored.—Pleas in abatement are not favored, and are to he strictly construed, and the matter in abatement must exist at the time of filing .of the plea.

Harrison, J. Plaintiff isa corporation, whose principal place of business is the city and county of San Francisco, and commenced the present action for the foreclosure of a mortgage that had been assigned to it. The mortgage was executed October 18, 1888, upon lands which were situated in that portion of the county of Fresno which was afterward included in the county [135]of Madera. The complaint was filed in the county of Madera September 6, 1893, and on April 25, 1884, the defendant Harris filed an amended answer, in which he set up as a separate defense “ that said plaintiff did not file in the office of the county clerk of the county of Madera its articles of incorporation, a certified copy of its articles of incorporation, and a certified copy of the copy of its articles of incorporation, as required by section 299 of the Civil Code, prior to the sixth day of January, 1894.” The cause was tried by the court, and judgment rendered in favor of the plaintiff. Upon the matter set forth in the foregoing defense, the court made findings in the same terms as it was pleaded. The defendant has appealed upon the judgment-roll, and urges in support of his appeal that, inasmuch as the plaintiff had not filed a certified copy of its articles of incorporation in the office of the county clerk of Madera county prior to the commencement of the action, it was not entitled to judgment.

Section 299 of the Civil Code requires every corporation to file in the office of the county clerk of any county in the state in which it holds any property, except the county where the original articles of incorporation are filed, “ a copy of the copy of its articles of incorporation filed in the office of the secretary of state, duly certified by such secretary of state,” and declares, as the penalty for failure to comply with this requirement, that “ any corporation failing to comply with the provisions of this section shall not maintain or defend any action or proceeding in relation to such property, its rents, issues or profits, until such articles of incorporation, and such certified copy of its articles of incorporation, and such certified copy of the copy of its articles of incorporation, shall be filed at the places directed by the general law and this section.” The last clause of this sentence shows that the previous clause is to be construed distributively, and that the documents therein named are to be filed at the places required therefor respectively. As section 296 of the Civil Code requires the original [136]

California Savings & Loan Society v. Harris

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief