Rayburn v. Bank of Commerce , 116 Miss. 54 ( 1917 )

Sykes, J.,

delivered the opinion of the court.

The appellee, Bank of Commerce, filed suit in the circuit court of George county against A. L. Hickman Company, alleging in its declaration that this company was a copartnership composed of W. W. Broome, Oliver Rayburn, and A. L. Hickman. It further alleges that these partners were trading under the name of A. L. Hickman Company, and executed a certain note signed A. L. Hickman Company. The bank, as the owner of the note, instituted this suit. A plea of general issue was duly filed by the appellant, Oliver Rayburn. He also filed a special plea under oath denying that he was ever a member of the firm of A. L. Hickman & Co., and that he did not execute the note sued on, and that he was never liable upon the said note as a copartner of the other defendants; that the note sued on was inconsideration of an indebtedness owing by A. L. Hickman Co., a corporation chartered and organized' under the laws of the state of Mississippi, which charter of incorporation was duly approved by the Governor, recorded in the office of the secretary of state, and also recorded in the chancery clerk’s office in Harrison county, the domicile of the corporation, before and at the time the note was executed; that the corporation was organized in 1905, and the indebtedness was incurred after its charter had been granted and filed, as above stated. A copy of the charter of the corporation was made an exhibit to this special plea. The appellee bank filed a demurrer to this plea, alleging: First, that it states defense; second, that it is insufficient in law; third, that it fails to show or allege that a report of the organization of the corporation was made to the .secretary of state within thirty days from the date of the purported organization. This demurrer was sustained in the lower court.

The only testimony introduced at the trial of the suit was the original note. Judgment was rendered against the appellant. Hence this appeal.

In the absence of any brief is this court on behalf of appellee, we can only surmise as to why a demurrer was sustained to the special plea. We think the plea sufficently sets forth the details of the incorporation of this company. It is true that it does not state that its organization was reported within thirty days to the secretary of state. We think, however, the allegation of the plea sworn to that it was a corporation would be sufficient, even if it had been necessary at the time of its corporation to have reported this organization to the secretary of state. There is nothing in the plea to show a defective organization of the corporation; and if, as a matter of fact, it was defectively organized, this was an affirmative matter that should have been set up by rep-. lication by the bank.

Section 930, Code of 1906, which required a report of the organization to the secretary for state within thirty days, was, however, not in force when the cor-portion was organized and started business.

The demurrer to this special plea should have been overruled. The judgment of the lower court as to the appellant Oliver Rayburn is reversed, and the cause remanded.

Reversed and remanded.