D. M. Osborne & Co. v. Shilling

74 P. 609, 68 Kan. 808, 1903 Kan. LEXIS 437

• Court: Supreme Court of Kansas
• Decided: December 12, 1903
• Docket: No. 13,373
• Status: Published

Opinion

Per Curiam:

The plaintiff in error, as plaintiff below, brought this action upon two promissory notes given by the defendants in error for the purchase-price of a corn-harvesting machine. The defendants, as one of the grounds to defeat plaintiff’s recovery, pleaded that it was a foreign corporation, and had not complied with the provisions of section 1283, General Statutes of 1901, requiring foreign corporations to file with the secretary of state certain statements as therein provided, and that consequently it could not maintain its action. The reply contained a general denial.

Upon the trial, after plaintiff' had rested, defendants demurred to plaintiff’s evidence because it did not show a right of action in the plaintiff against the defendants, The court sustained the demurrer upon the specific ground that the plaintiff (the burden resting upon it so to do) had not shown that it had complied with the provisions of the section above cited at the time of the commencement of the action, and thereupon dismissed the action and adjudged that the plaintiff should pay the costs.

This was error, for which the case must be reversed. We have already decided, in Northrup v. Wills, 65 Kan. 769, 70 Pac. 879, that the burden' in such case rests upon the defendant.

Various other matters are urged in the brief of plaintiff in error, but we do not think it necessary to pass upon, them, as different issues may arise upon another trial.

.The case will be remanded for further proceedings.