Lewis J. Selznick Enterprises v. Harry I. Garson Productions

167 N.W. 1010, 202 Mich. 106, 1918 Mich. LEXIS 466

Opinion

Brooke, J.

(after stating the facts). The brief of appellants is devoted entirely to a discussion of the question whether plaintiff was in fact engaged in carrying on business in the State of Michigan without a license. The meritorious question thus raised we find it unnecessary to discuss at this time for the reason that in our opinion defendants are not entitled to a final determination thereof upon the record as presented.

Section 4, chap. 14, of the judicature act (3 Comp. Laws 1915, § 12456), is as follows:

“Demurrers, pleas in abatement, and pleas to the jurisdiction, are abolished. All questions heretofore raised by such plea or demurrer, shall hereafter be raised by motion to dismiss, or in the answer or notice attached to the plea; and in case such questions are raised by answer, or by notice attached to the plea, the same may be brought up for determination by the court, in advance of the trial of said cause, upon four days’ notice by either party.” * * *

We had this section under consideration in the late case of Pagenkoff v. Insurance Co., 197 Mich. 166, where we said:

“Unless the matters set up in this motion to dismiss are matters which might have been raised by demurrer, plea in abatement, or plea to the jurisdiction under the former practice, they cannot be made the basis of a motion to dismiss.”

Section 3 of Circuit Court Rule No. 25 provides:

“Pleas in equitable actions, other than pleas in . abatement and to the jurisdiction (which are abolished by' statute) are abolished, and all defenses which might formerly be raised by such pleas shall be interposed by answer provided that on cause shown by motion an issue so raised may be heard in advance of the trial in the cause.”

In our opinion the motion to dismiss cannot properly be considered either as a plea in abatement or a plea to the jurisdiction. Foreign corporations have an undoubted right to litigate their claims in the courts of this State. We are, too, of opinion that the contract itself and the dispute arising thereunder is- within equitable jurisdiction. If plaintiff is barred from maintaining this action because of the statutory provision, that fact has no bearing upon the jurisdiction of the court but may be pleaded by defendants as an affirmative defense in bar of the action. Power Specialty Co. v. Michigan Power Co., 190 Mich. 699. Assuming but not determining that the motion to dismiss may be regarded in the light of a demurrer, defendants’ answer and the affidavits in support of the motion cannot be considered in determining the question. Freeman v. Mitchell, 198 Mich. 207. Upon such an inquiry the only question involved would be whether the bill of complaint stated a cause of action. Allen v. Powers, 196 Mich. 622. Averment in the bill that plaintiff has complied with the statute is unnecessary, as such compliance will be presumed. Prussian National Ins. Co. v. Eisenhardt, 153 Mich. 198. We are quite clear that the defense relied upon is affirmative in character and must be pleaded in bar. Pagenkoff v. Insurance Co., supra. See, also, Fuller & Co. v. Schrenk, 58 App. Div. 222; Illinois Sewing Machine Co. v. Harrison, 43 Colo. 362 (96 Pac. 177).

The order denying the motion to dismiss is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit.