its name, though in fact not correct.17 The existence of the alleged corporate plaintiff is not admitted.18 An appearance by the corporation as garnishee may be efficient as to it, though it cannot bring in the main defendant.19 A foreign corporation puts itself under the jurisdiction by general appearance,20 even, it has been held, though it has already been dissolved in its domicile.21 § 3020. Authority to enter appearance for corporation. As in the analogous matter of service the appearance must be by such a person as has authority to represent the corporation for that purpose 22 for which reason its receiver's appearance is not its appearance,23 nor is that of an individual party or codefendant.24 Neither is an ap 17 A "railway" company by appearing and pleading to suit against a "railroad" company of similar name admits that both are the same corporation. The resultant judgment is conclusive. Mobile & M. Ry. Co. v. Yeates, 67 Ala. 164. Misnomer of a school district. School Dist. No. 14 v. Griner, 8 Kan. 224. As to pleas in abatement for misnomer, see § 3072, infra. 18 Waives only objections to service of the writ and leaves open the defense that plaintiff is not a corporation. Greenwood v. Lake Shore R. Co., 10 Gray (Mass.) 373. 19 Motion by garnishee to set aside judgment on the merits. Wickham v. South Shore Lumber Co., 89 Wis. 23, 61 N. W. 287. Bad garnishment process is waived by appearance and submission to a rule to answer. Baltimore, O. & C. R. Co. v. Taylor, 81 Ind. 24. But in Pennsylvania R. Co. V. Rogers, 52 W. Va. 450, 62 L. R. A. 178, 44 S. E. 300, it was held that it will not cure defective process of garnishment on appearing party. 20 National Coal Co. v. Cincinnati Gas Coke, Coal & Mining Co., 168 Mich. 195, 131 N. W. 580; Piedmont & A. Life Ins. Co. v. Fitzgerald, 1 White & W. Civ. Cas. Ct. App. (Tex.) § 1346. See generally chapter on Foreign Corporations, infra. 21 A foreign dissolved corporation submits itself to the jurisdiction by answering and can only answer to the merits. Frink v. National Mut. Fire Ins. Co., 90 S. C. 544, Ann. Cas. 1913 D 221, 74 S. E. 33. 22 Where it appeared that the president did not reside in and was in fact absent from the state, the corporation was bound by an acceptance of service by its cashier or by his voluntary entry of appearance, he being competent for service in the president's absence, although the corporation had suspended business more than a year prior to the institution of the suit. Whitman v. Citizens' Bank of Reading, 110 Fed. 503. Necessity that person served be representative of the corporation, see § 2991, supra. 23 Price v. Delano, 187 Mich. 49, 153 N. W. 7. 24 Individual appearances do not waive defects going to the corporation (school district). People v. Jones, 254 Ill. 521, 98 N. E. 962. A cause for a sum below the original jurisdiction of the district court (having general jurisdiction) is not brought under its jurisdiction as [§ 3021 pearance as amicus curiæ one by the corporation, though made by an attorney who also represents it and for the purpose of questioning a defective service on it.25 While an attorney of a court of record has presumable authority to appear 26 proof may be required when the appearance is made before an inferior court, such as a justice of the peace.27 When unauthorized an appearance may nevertheless be ratified by any subsequent action recognizing it.28 It may also be assailed for want of authority.29 IV. PARTIES § 3021. General law of parties. The general law of parties is applicable to actions by or against corporations with a very few adaptations necessitated by their impersonal nature. This follows from their capacity to sue or be sued like natural persons. Most of the cases here cited on the law of parties are really but illustrations of general law with no feature peculiar to corporations except that one of the parties was a corporation. But they are of utility as illustrations. To be a party on either side the corporation must be correctly or at least with certainty named as such 30 and must have come under the jurisdiction of the court by appearance or process in the particular suit.31 In nothing is the distinctness of the corporation from its members and officers more marked and emphasized than in the determination of parties. They are not parties by reason of its being one,32 and when to a given corporation where another appeals from a justice's judgment but not defendant corporation, and where defendant answers, but the answer is not an appearance because the jurisdiction is not original. Southern Pac. Co. v. Burns (Tex. Civ. App.), 23 S. W. 288. 25 International & G. N. R. Co. v. Moore (Tex. Civ. App.), 32 S. W. 379. 26 See § 2934, supra. Attorney presumably has authority to appear to indictment. State v. Passaic County Agr. Society, 54 N. J. L. 260, 23 Atl. 680. 27 A bad process from a justice is not cured by an appearance also bad because not legally proved before him. Sherwood v. Saratoga & W. R. Co., 15 Barb. (N. Y.) 650. Appearance before a justice cannot be claimed where the attorney's au thority for the corporation was neither admitted nor proved. Boynton v. Keeseville Elec. Light & Power Co., 5 N. Y. Misc. 118, 25 N. Y. Supp. 741. Appearance before return day by one who swore he had authority suffices to give jurisdiction in justice's court. Behan v. Phelps, 27 N. Y. Misc. 718, 59 N. Y. Supp. 713. 28 Entry of appearance by attorney is ratified by filing an affidavit in the case that he is "its duly appointed attorney." Famous Mfg. Co. v. Wilcox, 80 Ill. App. 54, aff'd 180 Ill. 246, 54 N. E. 211. 29 Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 13 Am. St. Rep. 204, 20 Pac. 771. 30 See § 3041, infra. 31 See §§ 2977, 2985 et seq., supra. 32 See 33 et seq., supra. a stockholder sues, the rule requires strictly that it be in his own name if suing for individual rights, or in his name with sufficient allegations of a refusal or inability to sue when it is derivative and based on a corporate right.33 So when it sues or is sued they must be specifically made parties by impleading or intervention to be such.34 Whether the corporation or some other is the proper plaintiff or defendant in a proposed action is substantially a question of rights rather than of parties. The party plaintiff is known by ascertaining the person entitled or injured, and the person doing the wrong or sustaining the obligation is the defendant. Ordinarily this does not depend on the law of corporations or of parties, but on the law of contracts, torts, real property, and the like, which subjects should be consulted first. § 3022. Actions and suits by or in favor of corporation-In general. The corporation is the only proper plaintiff when the cause of action runs in its favor as the aggregate body; and neither officer, stockholder or creditor as such, or one to whom it stands as a trustee to a cestui que trust, without additional equities special to himself can bring the suit.35 They cannot even join themselves as coplaintiffs and thereby sue unless they have some community of right or interest with it held by them as individuals.36 Apparent but unreal exceptions to this rule are: actions under authority of statute whereby one of the officers or perhaps a stockholder sues to redress official misconduct or wrongdoing; 37 equitable actions or suits, stockholders' suits, brought by one or more stockholders on allegations that the corporation cannot or will not sue; 38 actions by the stockholders or officers as common law or statutory successors of an extinct or dissolved corporation; actions entitled in the name of "trustees," "president and directors of," etc., the same being a part of the corporate name; 40 actions by virtue of statute in which the attorney general or other public officer 33 See chapter on Stock and Stockholders, subdivs. Actions by Stockholders, Remedies of Stockholders, etc., infra. 34 They must become such before they can have a hearing (receivership suit against corporation). Hearn v. Clare, 131 Ga. 374, 62 S. E. 187. As to intervention, see § 3037, infra. 35 Bradley v. Richardson, 2 Blatchf. 343, Fed. Cas. No. 1,786; Donovan v. Dean, 1 Flip. 182, Fed. Cas. No. 3,992. 36 See § 3023, infra. 39 37 See Chap. 42, § 2670 et seq., supra. 38 See chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra. Even in a stockholders' suit the right of action and recovery are pri marily in the corporation. Kelly v. Dolan, 218 Fed. 966. 39 See 2955, supra, and chapter on Forfeiture, Dissolution and Winding Up, infra. 40 See $3041, infra. 41 and others. sues officers or directors for official misconduct or wrong; perhaps, where an equity or right running to the corporation is invoked through a suit begun by some of the officers or members or a creditor who also has a standing to sue.42 In all of these but the fourth exception it will be seen that a distinct right by statute or in equity exists in favor of the individual plaintiff. The corporation is the sole plaintiff on all contracts running to it as the sole promisee,49 by whatever name, so be it the real party in interest, unless the technical common-law practice remains of suing in the nominal party's name, and so long as the right of action has not been passed to another.45 It and not its officers or its stockholders should be plaintiff, if recovery of its property is sought,46 or the establishment of its 44 41 See Chap. 42, § 2670 et seq., supra. 42 Of this class may be mentioned suits for a receiver or winding up of the corporation, which may be to its interest and desired by it, but where the plaintiff has also a right of action on which he sues usually making the corporation a formal defendant. See chapters on Receivers; Forfeiture, Dissolution and Winding Up, infra. 43 Action by trustees for the corporation on a note to it should be by it. Leftwick v. Thornton, 18 Iowa 56. See also 3023, infra. 44 This is a statutory rule under the codes providing that the real party in interest may sue (see the local statutes) but it was also admissible at common law to sue on a contract made to it by some other name or to its officer, if in fact the promise was made to it by that name. (See § 3032, infra.) A corporation is the real party in interest even though its name has been changed. Philapy v. AukermanBright Lumber Co., 56 Ind. App. 266, 105 N. E. 161. A foreign selling corporation maintained merely for convenience and subordinate to complainant is not the real party plaintiff in a trade-mark suit. Rubber & Celluloid Harness Trimming Co. v. Rubber Bound Brush Co., 81 N. J. Eq. 419, 519, Ann. Cas. 1915 B 365, 88 Atl. 210. New Equity Rule 37 declaring that every action shall be prosecuted in the name of the real party in interest states only the previous established rule. Kardo Co. v. Adams, 231 Fed. 950. 45 A resolution to transfer the cause of action, not executed and afterward rescinded is no obstacle to suit by the corporation. Medlin Milling Co. v. Moffatt Commission Co., 218 Fed. 686. 46 Corporation and not the treasurer of a local lodge should be plaintiff in action to recover its property. Conboy v. Mathews, 174 N. Y. App. Div. 523, 160 N. Y. Supp. 538. The corporation and not a stockholder is the proper plaintiff to recover assets belonging to it, unless a stockholders' suit is brought with proper allegations, in which suit the corporation must be a defendant. Allen v. New Jersey Southern R. Co., 49 How. Pr. (N. Y.) 14. The corporation is a proper plaintiff to sue for cancellation of spurious stock certificates uttered by its officer, its right is based on the right of cancellation in equity and not as trustee for the holders of its genuine stock. New York & N. H. R. Co. v. rights therein.47 It may therefore sue for injury to it arising from the making of improper subscriptions, and for a decree cancelling them.48 And it may sue though the facts also disclose causes of action pertaining to the individual stockholders, for example where an invalid tax is assessed against its shares in the hands of numerous holders and multiplicity of suits would ensue if they all sued or it might be exposed to loss if it was forced to pay for them.49 In selecting the defendants to a suit by the corporation all necessary to administration of the relief prayed must be joined, and in equity all who are proper to a full and complete adjudication may be joined; but this does not depend on the corporate character of the plaintiff, and is determined by the nature of the cause of action and the subject-matter of the suit.50 Like a natural person the corporation may sue as many or as few tort feasors as it chooses, they being severally liable as well as jointly.51 Officers who exceeded their authority in making a contract need not be made defendants to a suit. to set it aside if no relief against them is sought.52 When the corporation sues one who stands as trustee, he represents the beneficiaries of the trust as to matters within its contemplation but not when its annulment is sought,58 and therefore it has been held that not all of the policy holders need be joined when the insurance commissioner Schuyler, 7 Abb. Pr. (N. Y.) 41, rev'g 1 Abb. Pr. (N. Y.) 417. 47 The corporation is the necessary and proper party to sue to vacate a foreclosure decree against property owned by it on the ground of fraud in the service, where the proof fails to show that it had become dissolved vesting title to sue in the stockholders. They should not be joined. Fox v. Robbins (Tex. Civ. App.), 62 S. W. 815. 48 Union Bank v. McDonough, 5 La. 63. 49 A national bank may sue as plaintiff to enjoin unlawful taxation of its shares, proper averments to show a case for avoiding multiplicity being made. City Nat. Bank v. Paducah, 2 Flip. 61, Fed. Cas. No. 2,743. 50 See generally treatises on the law of parties and also the provisions of the various codes of procedure. As to parties in equity, which has been called a "very complex and difficult" doctrine, see Mitford's and Tyler's Pleadings and Practice in Equity, pp. 16, 256 et seq.; Fletcher's Equity Pl. & Pr.; Daniell, Chan. Prac. Actions against officers and stockholders or members, see also § 3024, infra. 51 One or any number of persons defrauding a corporation in promotion may be sued by it. Davis v. Las Ovas Co., 227 U. S. 80, 57 L. Ed. 426; Las Ovas Co. v. Davis, 35 App. Cas. (D. C.) 372. Especially where no charge is attempted for such profits as the omitted one may have made. Id. See also § 142, supra. 52 Pioneer Gold Min. Co. v. Baker, 20 Fed. 4. 53 In action to annul trust mortgage and bonds, the bondholders are necessary parties, as the trustee cannot as defendant represent them for that purpose. In re Harrisburg & E. R. |