S. C. Herbst Importing Co. v. Hogan , 16 Mont. 384 ( 1895 )

Hunt, J.

We find no error in the exercise of the discretionary power of the court in refusing to set aside the default of the defendant, but are constrained to reverse the case upon other grounds.

The first count of plaintiff’s complaint is fatally defective, and upon a general demurrer should have been so held. The plaintiff nowhere pleads any indebtedness by the defendant to plaintiff, or to any one else. This omission may have been a clerical error, but it is none the less material. Nor does plaintiff aver that the goods and merchandise sold and delivered to defendant were sold or delivered by plaintiff, or by any one in behalf of plaintiff, or by any one else. There is no averment whatsoever of the count to so connect the parties with any wrong done as to entitle the plaintiff to redress.

By the special demurrer to the first count, appellant attempts to raise a question more properly tested by a demurrer based upon the ground that plaintiff has no legal capacity to sue. (Bliss on Code Pleading (3d Ed.) § 108a; Maxwell on Code PL pp. 370, 371.) As bearing directly on this point see the following cases, which hold that a legal capacity to sue is an ordinarv incident to a corporation, and that ground of demurrer for want of capacity to sue must appear from allegations as made in the complaint, and not from want of allegations: American B. H. & O. Co. v. Moore, 2 Dak. 280; Crane Bros. Manufacturing Co. v. Reed, 3 Utah 506; Pom. Code Rem. § 208; Smith v. Sewing Mach. Co., 26 Ohio St. 562; Phoenix Bank v. Donnell, 10 N. Y. 410.

The general demurrer to the second count was properly overruled. But, while the count states a cause of action, we think the special demurrer was well taken. Whether the Silver City Distilling Company, assignor of plaintiff, had or had not a legal existence, and what the nature of its existence was, ought, by all reasonable rules of pleading, to appear with some degree of certainty. The practice of most Code states makes uncertainty in a complaint ground for a motion to have the objectionable pleading made more certain, but, under the Montana practice, demurrer is the appropriate remedy. (Code of Civil Procedure § 87; Boone on Code Pleading § 51.)

The answer proposed by defendant pleads that the plaintiff is a foreign corporation, and never has complied with the laws of the state requiring a certificate to be filed in the office of the secretary of state, designating an agent, who shall be a citizen of the state, upon whom service of summons and other process may be made, and providing, further, that, if such foreign corporation shall- fail to comply with the provisions of the statute referred to, all its contracts shall be void as to the corporation, and no court of this state shall enforce the same in favor of the corporation. Act March 8, 1893 (Sess. Laws 1893, p. 91). The court, being without brief or argument on this point, refrain from expressing any opinion upon how noncompliance with the statute may affect the contracts of the plaintiff, if the allegations of the answer are true. When this identical question was incidentally raised in Dakota, the court, by Shannon, C. J., said: “Before determining so grave a question, we must not only have a proper case, but great care must be taken to examine that class of authorities which assert the doctrine that when a statute prohibits an act, or annexes a penalty for its commission, it does not always follow that the unlawfulness of the act was meant by the lawmakers to avoid a contract made in contravention of it. ’ ’ (American B. H. & O. Co. v. Moore, 2 Dak. 280, and cases therein cited.)

We think the affidavit in attachment is defective in not stating the nature of the contract sued upon, whether express or implied. It should also be properly entitled. These defects, however, can be cured by amendment. (Pierse v. Miles, 5 Mont. 549; Langstaff v. Miles, 5 Mont. 554; Magee v. Fogerty, 6 Mont. 237; Josephi v. Clothing Co., 13 Mont. 195.)

The judgment of the district court is reversed, and the cause is remanded with directions to sustain the defendant’s general demurrer to the first count of plaintiff’s complaint and defendant’s special demurrer to the second count of plaintiff’s complaint. The order of the district court denying the defendant’s motion to dissolve the attachment is also set aside, and the cause is remanded with directions that the plaintiff have an opportunity to give such a new affidavit in attachment as the law requires. Beversed and remanded.

Reversed.

Pemberton, C. J., and De Witt, J., concur.