Depeugh v. Board of Commissioners

126 N.E. 484, 73 Ind. App. 91, 1920 Ind. App. LEXIS 71

• Court: Indiana Court of Appeals
• Decided: March 17, 1920
• Docket: No. 10,139
• Status: Published

Opinion

McMahan, J.

Appellant as a taxpayer brought this action against the board of commissioners of Delaware county, Curtis Rector, W. E. Hendricks, Thomas Prutzman and the Barrett Company, to enjoin said board of commissioners from entering into contracts with said Rector, Hendricks and Prutzman for the improvement of certain highways, and to enjoin the appellee Barrett Company from doing business in this state, on the ground that it is a foreign corporation, and it has never complied with the laws of this state authorizing such corporations to do business in this state.

Separate demurrers by each of the appellees for want of facts were sustained. Appellant excepted to this ruling of the court and refused to plead further, and judgment was rendered against him. The errors assigned are that the court erred in sustaining each of said demurrers.

The complaint failed to state a cause of action against the appellee Barrett Company for the reason that a private individual cannot maintain an action to enjoin acts-within the state by a foreign corporation on the ground that it has not complied with the statutory conditions precedent to the right to do business within the state. MacGinniss v. Boston, etc., Mining Co. (1904), 29 Mont. 428, 75 Pac. 89; General Film Co., etc. v. General Film Co., etc. (1916), 237 Fed. 64, 150 C. C. A. 266; Williams v. Hintermeister (1886), 26 Fed. 889; 19 Cyc 1314. There was therefore no error in sustaining the demurrer of the Barrett Company.

The question presented by the demurrers of the other appellees was decided against the contention of appellant in Tousey v. City of Indianapolis (1911), 175 Ind. 295, 94 N. E. 225. On the authority of that case, we hold there was no error in sustaining the demurrers of said appellees to the complaint. Judgment affirmed.