Mackay & Knobel Enterprises, Inc. v. Teton Van Gas, Inc.

486 P.2d 386, 26 Utah 2d 137, 1971 Utah LEXIS 675

• Court: Utah Supreme Court
• Decided: June 23, 1971
• Docket: No. 12306
• Status: Published

Opinion

TUCKETT, Justice.

The plaintiff commenced this action in the District Court of Salt Lake County on May 27, 1964, against Teton Van Gas, Inc. The plaintiff seeks to recover damages for the destruction by fire of its service station in Summit County. It is the plaintiff’s claim that the fire resulted from the defendant’s negligence in installing a butane gas tank without proper controls. The defendant moved the court to dismiss the complaint on the ground that the plaintiff’s corporate charter had been suspended prior to the initiation of this action. After a hearing a minute entry was made by the court dismissing the action. Thereafter the plaintiff filed' an action in the District Court of Summit County seeking similar relief against the defendant Teton Van Gas, and Van Gas, Inc., was added as an additional defendant. The defendants in the Summit County action moved for dismissal on the ground that the plaintiff corporation lacked legal capacity to maintain the action, and thereafter the court made and entered an order dismissing the action. An appeal was taken from the judgment of dismissal and this court reversed.¹ The decision in that case is controlling here.

The defendants request this court to abate these proceedings inasmuch as the plaintiff elected to file a similar case in Summit County wherein defendant here was made a party. This matter was raised for the first time on appeal. An examination of the record reveals that the District Court was not requested to abate either this case or the one filed in Summit County.

The judgment of dismissal in this case is reversed. Appellant is entitled to costs.

CALLISTER, C. J., and HENRIOD, ELLETT and CROCKETT, JJ., concur.

1 . Mackay & Knobel Enterprises, Inc., v. Teton Van Gas, Inc., 23 Utah 2d 200, 460 P.2d 828.