statutes means actions both at law and in equity.25 "Debts" has been construed as excluding penal actions.26 Such statutes do not apply to foreign corporations,27 or to voluntary dissolutions where provisions regulating them imply that none of the purposes for which existence is continued shall exist,28 or where a legislative repeal is manifestly against such a construction; 29 but a repeal may contain a saving clause for pending actions,80 and a saving clause for such as should "expire or be dissolved" has been held to include ipso facto forfeitures as well as judicial dissolutions.31 If the corporate existence and capacity for suit is extended by the statute, then the suit or defense should be in its name conducted by its officers or representatives,32 and such is the better, but not un 25 A saving elause in favor of "any suits now pending" includes actions at law where the writ is dated before the act took effect (statute declaring forfeitures). Worcester Color Co. v. Henry Wood's Sons Co., 209 Mass. 105, 95 N. E. 392. 26 A statute giving jurisdiction over a corporation "to pay its debts" when it shall have surrendered its charter, does not save a penal action. Voluntary dissolution abates it. State v. Arkansas Cotton Oil Co., 116 Ark. 74, Ann. Cas. 1917 A 1178, 171 S. W. 1192. 27 Fitts v. National Life Ass'n, 130 Ala. 413, 30 So. 374; Olds v. City Trust, Safe Deposit & Surety Co., 185 Mass. 500, 102 Am. St. Rep. 356, 70 N. E. 1022. Revival statutes of Texas do not apply to foreign corporations. Life Ass'n of America v. Goode, 71 Tex. 90, 8 S. W. 639. On the other hand it has been held that a foreign insurance corporation having submitted to local laws on admission to do business is continued after its dissolution in the domicile by Code, 1866, applying to "all corporations.'' Frink v. National Mut. Fire Ins. Co., 90 S. C. 544, Ann. Cas. 1913 D 221, 74 S. E. 33. complete scheme for winding up, leaving nothing for the other statute to work on. Nelson v. Hubbard, 96 Ala. 238, 17 L. R. A. 375, 11 So. 428. 29 Statutes continuing existence for purpose of suit do not apply to corporations dissolved by legislative repeal of the charter. Board of Councilmen City of Frankfort v. Deposit Bank of Frankfort, 120 Fed. 165, aff'd 124 Fed. 18, on other grounds. 30 A legislative repeal of the charter will not abate actions pending against it where there is a saving clause, and another clause of the act provides that it shall not "take away or impair any remedy for any liability previously incurred." Blake v. Portsmouth & C. R. R. Co., 39 N. H. 435. * 31 Under a statute providing that "when a corporation shall expire or be dissolved, suits may be brought, continued or defended in the corporate name, in like manner and with like effect as before" (Code, c. 53, § 59), a forfeiture for nonpayment of tax abates no suits then pending. Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. 227. 32 Receiver may sue in the corporate name within the statutory two years of continued existence (statute construed). Ramsey v. Peoria Marine & Fire Ins. Co., 55 Ill. 311. And a 28 The voluntary dissolution allowed by statute in Alabama provides a varying, rule where trustees are continued as trustees "for the corporation" to sue and be sued.33 But when the statute makes the directors continue as trustees for "creditors and stockholders' suits by or against them are not in representation of the corporation but of the cestuis que trust; and the continuance of the suit is accomplished by a substitution of parties,34 although such a statute omitting any provision for a motion to substitute has been construed as allowing the suit to go on without that formality.35 Statutes empowering the receiver to sue or be sued do not recognize the continued existence of the corporation.36 In Illinois it is held as matter of general law that existence is continued after dissolution for the purpose of winding up pending suits by the corporation, though a statute giving a limit of two years applies to some corporations,37 but on suits against the corporation on prior liabilities that state imposes no time limit except the general statute of limitations.38 After the corporation is defunct or has failed to elect new officers, the old ones suit by trustees in liquidation authorized to sue in the name of an expired bank is deemed to be one by the corporation. Plea of nul tiel corporation held untenable. State v. Bank of Washington, 18 Ark. 554. Suit may be in name of a bank for benefit of its trustees who are liquidating its affairs and to whom it has assigned the note sued on. Crews v. Farmers' Bank, 31 Gratt. (Va.) 348. 33 That the corporation does not continue to be and exist as a cestui que trust even though its trustees are described as "trustees of such corporation" by the statute enabling them to sue or be sued after expiration of term, see Sturges v. Vanderbilt, 73 N. Y. 384. In that case the statute, however, empowered the trustees to sue or be sued as trustees of the corporation or in their individual names, thus rebutting any continued corporation. Id. 34 Lowe v. Superior Court of Los Angeles County, 165 Cal. 708, 134 Pac. 190. license tax. Lowe v. Superior Court of Los Angeles County, 165 Cal. 708, 134 Pac. 190. 36 On the contrary they enable him to sue in his own name where otherwise the corporate name must have been used. Wilcox v. Continental Life Ins. Co., 56 Conn. 468, 16 Atl. 244. 37 The corporation may prosecute to judgment after dissolution a suit begun before it. Graham & Morton Transp. Co. v. Owens, 165 Ill. App. 100. The limitation of two years in Rev. St. c. 32, § 10, applies only to corporations "organized under this law"; and the general law of the state enables others to sue for winding up purposes without regard to that limitation. Commercial Loan & Trust Co. v. Mallers, 242 Ill. 50, 134 Am. St. Rep. 306, 17 Ann. Cas. 224, 89 N. E. 661. 38 Under the statute the right to sue it on pre-existing causes is unimpaired by dissolution and the continuance of existence for that pur. pose is not limited to two years as in case of suits by it (statutes con 35 See Act of March 20, 1905, § 10a, as amended March 20, 1907, relating to forfeiture for nonpayment of [§ 2955 may be served as its representatives whenever its existence is continued for winding up or it has become a suspended one without actual extinction, subject of course to the possibility of a statutory substituted method of serving it.39 The time of such continued existence should be reckoned from dissolution date,40 or date of resolution to dissolve,41 and time allowed to "prosecute" means to prosecute to conclusion. At the end of the extended time given, if the intendment of the statute is that all litigation shall be concluded within it, the action will abate though uncompleted; 43 otherwise, if the statute merely requires a commencement within the extended time.44 If the statute saves the suit from abatement only on condition of a proceeding to continue or revive it, such proceeding is indispensable, and the same is true where it devolves all rights of action strued). Singer & Talcott Stone Co. v. Hutchinson, 176 Ill. 48, 51 N. E. 622, rev❜g 72 Ill. App. 366. 39 See § 3002, infra. 40 Action begun in 1905 by corporation which expired 1907 is not abated in 1908, where statute continues existence for three years to wind up. Muncie & Portland Traction Co. v. Citizens' Gas & Oil Min. Co., 179 Ind. 322, 100 N. E. 65. 41 Two statutes construed to give bank time to accept an act providing for winding up and a fixed period of three years after that. Cunningham v. Clark, 24 Ind. 7. "de 42 L. O. L. § 6699, continuing dissolved corporations for five years, if necessary to "prosecute" or fend" pending actions requires that they be brought to final decision within that time. Accordingly action begun after voluntary dissolution abated when the period was complete while appeal was pending. Service & Wright Lumber Co. v. Sumpter Valley Ry. Co., 81 Ore. 32, 152 Pac. 262, setting aside judgments 81 Ore. 32, 149 Pac. 531, and 67 Ore. 63, 135 Pac. 539. 43 The Oregon statute giving five years to prosecute or defend actions after dissolution, abates pending ones not brought to a conclusion within that time. Dundee Mortgage & Trust Inv. Co. v. Hughes, 77 Fed. 855. 44 The action if commenced within the three years can be concluded thereafter (statutes construed). Bewick v. Alpena Harbor Improvement Co., 39 Mich. 700. Under Michigan statute an assignment and suit within three years by the assignee in the corporate name may be prosecuted to effect thereafter. Michigan State Bank v. Gardner, 15 Gray (Mass.) 362. Statute gave two years to commence suits in corporate name and as much time as was necessary to prosecute them to judgment. Franklin Bank v. Cooper, 36 Me. 179. At end of the extended time no action can be brought. Thornton v. Marginal Freight Ry. Co., 123 Mass. 32. 45 The suit abates unless statutory proceedings to continue it are had. Sinnott v. Hanan, 214 N. Y. 454, 108 N. E. 858, rev'g 156 N. Y. App. Div. 323, 141 N. Y. Supp. 505; Sturges v. Vanderbilt, 73 N. Y. 384; McCulloch v. Norwood, 58 N. Y. 562; Wamsley on the receivers who are charged with the duty of liquidation.46 II. JURISDICTION AND VENUE OR "PLACE OF TRIAL" § 2956. Jurisdiction and its requisites-In general. Jurisdiction is the power to hear and determine a cause,47 and that is the sense in which the term is used in this chapter. In its simplest terms this requires a subject-matter which the court is competent to adjudicate upon, and the submission or subjection of the parties to its judicial power; and the competency of the court will not depend on the corporate or nonincorporate character of the parties unless a statute has so provided. The other requisite, that of submission to the jurisdiction or subjection to it, has called forth nearly all of the decisions upon the question of jurisdiction over corporations; for when a corporation defendant did not voluntarily appear, which was comparatively seldom, the plaintiff and the court were obliged to consider whether process existed and could be executed in conformity with the law of the land to make it subject to the jurisdiction. In the earliest times when actual appearance was essential it could only be coerced indirectly by distringas, as will be seen hereafter,49 and when later the process of summons was devised and actual appearance became unnecessary, the problem remained of executing the process by service on a person with authority to represent the corporation for that purpose so that it would be bound. Domestic corporations ordinarily presented no difficulty, because they could be found and their chief officer served; 50 hence the court had jurisdiction over them, that is to say had the means to acquire it. As to wholly foreign and absent corporations the court had no means of serving them in personam and has none now, whence the saying that there was no jurisdiction over them. But when a foreign corporation was present in the territory of the jurisdiction by its agents there for the general purpose of doing business and competent to represent it in receiving service such as the law authorized, the obstacle to exercising the jurisdiction was gone. From all of which it appears that, in the absence v. H. L. Horton & Co., 87 Hun (N. Y.) 347, 34 N. Y. Supp. 306; In re Norwood, 32 Hun (N. Y.) 196. 46 Miami Exporting Co. v. Gano, 13 Ohio 269. 47 See Cyclopedic Law Dictionary; Bouvier's Law Dict., title "Jurisdiction." 48 The existence of the subjectmatter and of a cause of action respecting it may both depend on the fact of a corporation, but not the competency of the court. 49 See § 2985, infra. [§ 2956 of a statute otherwise providing, all that is necessary to jurisdiction over any corporation from the court's point of view is that it shall be present in its corporate character within the territory over which the power of the court extends, and that process be there executed or the corporation appear. To say that jurisdiction exists over existing domestic corporations, is only to say that they are present by original creation and existence. To say that jurisdiction over foreign corporations does or does not exist, is merely to say that they are or are not present in their corporate character by coming in with agents competent for service. Without this historical and somewhat elementary explanation the factor of domicile, residence and presence within the state as elements in jurisdiction cannot be so readily presented.51 The foregoing applies where the action is brought upon a cause seeking a judgment binding in personam on the corporation; but if nothing more than an adjudication affecting its property before the court is involved, which is the case in attachment suits, libels in admiralty by arrest of the vessel, and the like, then the essential thing is a res in court by virtue of its process duly executed, and the jurisdiction is in rem or quasi in rem, to which the presence of the corporation is not essential though the law may require notice to the corporation even in such proceedings and hold them erroneous if such notice be not given.52 This in brief is the same law as applies to all suitors and defendants, whether natural persons or corporations.53 The concrete subjects involved in jurisdiction, but separately treated are: citizenship, domicile and inhabitancy,54 presence or the doing of business within the state,55 process, service of same, and appearance,56 venue or place for trial.57 51 See § 2957 et seq., infra. 52 As to the modes of acquiring these several kinds of jurisdiction, see § 2977, infra. 53 See generally Freeman on Judg. ments, 120 et seq., and see quotations therefrom in this chapter, § 2977, infra. 54 See Chap. 13, supra, and chapter on Foreign Corporations, infra. 55 See chapter on Foreign Corpora tions, infra. 56 See § 2985 et seq., infra. 57 See generally § 2978 et seq., infra. sense the selection of the proper venue or place for bringing In a the action is one of the jurisdictional requisites of a suit, and as will be seen hereafter there are statutes which make the venue actually jurisdictional in suits against a corporation, so that if the wrong venue be chosen the judgment will be void. These statutes are exceptional, however, and aside from them the right to a certain place for trial is one which the defendant may waive. In other words the rules for laying the venue merely determine where and by which of coequal courts the jurisdiction shall be exercised. IV Priv. Corp.-59 |