Rothchild Bros. v. Mahoney

Crow, J.

— This action, instituted by Rothchild Bros., a foreign corporation doing business in this state, for the recovery of the value of merchandise sold, was commenced prior to the taking effect of chapter 140, Session Laws of 1907. 'The complaint did not allege that the plaintiff had paid its annual license fee last due. The amended complaint and reply were served and filed after the act took effect, but neither of them made any allegation in reference to the payment or nonpayment of the license fee. Thereafter the case came on for trial, both parties submitting evidence, at the conclusion of which the defendant made the following oral motion:

“That said action be dismissed on the ground and for the reason that the plaintiff is a foreign corporation doing business in this state and has wholly failed to allege or prove that it has paid its license fee last due as required by chapter 140 of the Session Laws of the state of Washington for the year 1907.”

The court, having heard the arguments of counsel, made and entered an order sustaining the motion and dismissing the action. The plaintiff has appealed.

The appellant contends that § 7, of chapter 140, Laws 1907, p. 271, cannot be construed as applying to this action, while the respondent makes the contrary contention. It is admitted that the action was commenced prior to the taking effect of said act, and that the pleadings were not fully at issue when it did take effect, no answer or reply having hcen served until after August 1, 1907. The contract sued upon was made prior to the passage of the act, and the appellant at that time had a perfect right to maintain its action in the superior court witho.ut alleging or proving payment of its annual license fee last due. Section 7 of the act reads as follows:

“No corporation shall be permitted to commence or maintain any suit, action or proceeding in any court of this state, without alleging and proving that it has paid its annual license fee last due. ...”

It is unnecessary for us to determine whether the section applies to actions pending at the date of its enactment, our view being that it only affects the plaintiff’s capacity to sue. Bal. Code, § 4907 (P. C. § 347), provides that the defendant may demur to the complaint when it shall appear upon its face that the plaintiff has no legal capacity to sue. Section 4909 provides that, when the matters enumerated in § 4907 do not appear upon the face of the complaint, the objection may be taken by answer; and § 4911 provides that, if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action. As failure to pay the license fee last due would, under the statute, only affect appellant’s capacity to sue, the respondent, by failing to object either by demurrer or answer to such want of capacity, waived his right to do so. Under the issues thus raised by the pleadings, he could not thereafter insist that proof of payment of the license fee by appellant should be made.

The trial court erred in dismissing the action. The judgment is reversed, and the cause remanded for a new trial.

Rudkin, C. J., Mount, and Gose, JJ., concur.