Marshall Field & Co. v. Houghton

208 P. 851, 35 Idaho 653, 1922 Ida. LEXIS 110

• Court: Idaho Supreme Court
• Decided: July 27, 1922
• Status: Published

Opinion

RICE, C. J.

Respondent filed a motion to dismiss the appeal on the ground that this court has no jurisdiction, for the reason that the record is insufficient in that no judgment-roll has. been certified to by the district court, and that the certificate does not certify that all of the pleadings used by the trial court are included in the transcript.

The motion is denied. (Gropp v. Huyette, post, p. 683, 208 Pac. 848.)

The appellant assigns as error the entry of judgment for respondent, because it was alleged in the complaint that respondent was a foreign corporation, organized under the laws of another state, and no other allegation is made of compliance with the laws of this state relative to foreign corporations doing business therein. This objection goes to the legal capacity of respondent to sue, and not having been raised by demurrer or answer, is waived. (Valley Lumber etc. Co. v. Driessel, 13 Ida. 662, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299; Valley Lumber etc. Co. v. Nickerson, 13 Ida. 682, 93 Pac 24; Kiesel v. Bybee, 14 Ida. 670, 95 Pac. 20; Thelan v. Thelan, 32 Ida. 755, 188 Pac. 40.)

The only other contention worthy of consideration is that the answer denied the corporate existence of respondent, and there was a failure of proof of such corporate existence. The trial court very properly characterized the trial by saying, “It’s a great fight, but it’s peculiar.” A perusal of the record leads to the conclusion that judgment was entered practically by consent in favor of respondent and against appellant, findings of fact having been waived. We will not enter upon a discussion of appellant’s contention, since it was in effect waived in the court below.

The judgment is affirmed, with costs to respondent.

Budge, McCarthy, Dunn and Lee, JJ., concur.