State ex rel. Green Bay Gas & Electric Co. v. Minahan Building Co.

123 N.W. 258, 141 Wis. 400, 1910 Wisc. LEXIS 5

• Court: Wisconsin Supreme Court
• Decided: February 1, 1910
• Status: Published

Opinions

The following opinion was filed November 12, 1909:

Kerwin, J.

It appears from the opinion of the trial judge sustaining the demurrer that it was sustained on the ground that the complaint does not state that the defendant is a corporation — only that it is a “pretended corporation,” — and that no other attack was made upon the complaint in the court below. The contention of the appellant here is that, since the facts are stated from which the court can determine that the defendant is a corporation, the corporate existence is sufficiently alleged to meet the calls of sec. 3205, Stats. (1898), which provides that in an action by or against a corporation the complaint must aver' that the plaintiff or defendant, as the ease may be, is a corporation, and, if organized under the laws of this state, that fact must be averred, and, if not so incorporated, an averment that it is a foreign corporation. In Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764, this court sustained a demurrer to the complaint because of lack of such averment and said:

“That the appellants are intended to be sued as corporations sufficiently appears from their names. Brauser v. New England F. Ins. Co. 21 Wis. 506. That being so, the complaint fails to comply with the requirements of the statute.”

We do not find it necessary to determine whether a statement of facts showing corporate existence would not be a sufficient compliance with the statute. Here we think the pleading falls short of direct averment of all the facts necessary to show corporate existence. On the contrary, the allegation that the defendant is a “pretended corporation” at least raises the implication that it is not a corporation. It is difficult to see how the defendant could he a “pretended corporation” and at the same time a real corporation. In other words, the allegation that defendant is a pretended corporation at least implies that it is not the thing it pretends to be.

Moreover, the complaint is wanting in full statement of all the material allegations necessary to show the creation of a valid corporation, and especially in face of the positive allegation that it is a “pretended corporation.” Besides, there is no allegation that the articles of incorporation or a copy thereof duly certified as required by subd. I, sec. 1772, Stats. (1898), was filed with the secretary of state, or that a verified copy and certificate of the secretary of state showing date when such articles were filed and accepted by the secretary of state, with the date, was left of filed with the register of deeds of the county in which said corporation is located, or that any certificate of incorporation or charter was ever issued, but merely that the defendant was acting under the “pretended authority purported to be conferred by its said articles of incorporation,- and by its corporate charter defendant has assumed to act as a corporation duly organized.”

It is clear from the allegations of the complaint that the plaintiff has not only failed to aver that defendant is a corporation, but has failed to allege all the facts from which the court could find that it is a corporation, and has directly alleged that it is only a pretended corporation, so on no theory has the statute requiring corporate existence to be alleged been complied with. It was necessary for plaintiff to show that some person natural or artificial was before the court as defendant. No natural person has been sued and no artificial person, because the defendant does not appear to be a corporation — only a pretended córporation. We do not regard it ■necessary to discuss cases cited by appellant from other juris■dictions upon the question, because we agree with the court below that the case is ruled by our statute ref erred to and the •decision of this court under it. ’ Counsel, however, cite to our .attention State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299, as supporting,their contention. But in that ■case it will be seen that the distinction is clearly made between an action brought against a legal corporation which has' usurped franchises which it does not possess, and a case where the alleged corporation is not one in fact and the object of the ■action is to procure a judgment declaring it to have no legal ■ existence. It is clear from the complaint here that the action is not brought to procure a judgment declaring that defendant has no legal existence, but because it holds and exercises a pretended ordinance and franchise and the rights attempted to be conferred. Secs. 3466, 3240, 3241, Stats. (1898) ; Independent O. of F. v. United O. of F. 94 Wis. 234, 68 N. W. 1011. Counsel for appellant in their brief state that the action is brought under sec. 3466, Stats. (1898).

It was further argued in this court that the action was not well brought because the relator is not a “private party” within the meaning of sec. 3466, Stats. (1898). While the relator may be said to be in its nature qmsi-public because subject to supervision by the public, it is nevertheless private as regards its property rights. Eastern Wis. R. & L. Co. v. Hackett, 135 Wis. 464, 115 N. W. 376, 1136, 1139; State v. Milwaukee E. R. & L. Co. 136 Wis. 179; 116 N. W. 900; State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546; State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145, 121 N. W. 919; Interstate Comm. Comm’n v. Chicago G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493.

We think the plaintiff is a private party under sec. 3466, Stats. (1898), but that the complaint states no cause of action, and therefore the order below must be affirmed.