[§ 3027 the corporation as a third party.20 Thus in the foreclosure of corporate mortgages, the corporation if still the owner of the property is a necessary party but only a proper one if it has parted with the title, unless a personal judgment is sought, in which case it would be a necessary defendant on that ground alone.21 If it has become extinct by dissolution or expiration it is of course not a party or capable of being one, and those who have succeeded to it in respect to the subject of the action take its place; and where its power of defending is in suspense by a receivership or the like it may be represented by the receiver or corresponding administrator.22 The joinder of it when otherwise necessary is not excused, however, by any allegations that do not show either such extinction or suspension.23 If the nature of a suit is such as to affirm that a corporation exists, and it is a necessary party, nonjoinder cannot be excused by denying that it was or could be a corporation.24 The question of joining a foreign corporation is complicated with the further questions of jurisdiction over it and of making an effective and enforceable decree 25 and it can

20 On a suit for the price of goods which defendant claimed was to be paid for in services to plaintiff's related corporation that corporation was a proper but not a necessary party. Bloch Queensware Co. v. Metzger, 70 Ark. 232, 65 S. W. 929.

21 See § 1372 et seq., supra. Corporation is indispensable party to foreclosure of mortgage on its property. Samuel v. Holladay, 1 Woolw. 400, Fed. Cas. No. 12,288.

In a suit to foreclose a lien, the corporation holding legal title is a proper defendant. Fox v. Robbins (Tex. Civ. App.), 70 S. W. 597; Fox v. Robbins (Tex. Civ. App.), 62 S. W. 815.

22 See chapters on Forfeiture, Dissolution and Winding Up; Insolvency; Bankruptcy; Receivers, infra.

In case of extinction occurring pendente lite an abatement takes place and a proper substitution must be made to carry on such defenses as have survived. See § 2955, supra.

23 Nonjoinder of the corporation as a necessary defendant is not excused

by allegations that for want of officers and suspension of business it cannot be served. That is not equivalent to alleging its dissolution. Swan Land & Cattle Co., Ltd. v. Frank, 39 Fed. 456.

A suit to restrain collection of a tax for aid in construction of a gravel road is not one to destroy the corporation, though its failure to organize is alleged; hence it may be joined as a defendant by its pretended name. Knight v. Flatrock & W. Turnpike Co., 45 Ind. 134, with dissenting opinion.

As to mode of pleading these facts see § 3069 et seq., infra.

24 A bill to dissolve an association pretending to be a corporation requires that it be a party, although it is alleged that it is not and could not be even a corporation de facto. Lincoln Park Chapter No. 177, R. A. M. v. Swatek, 105 Ill. App. 604, aff'd 204 Ill. 228, 68 N. E. 429.

25 See generally chapter on Foreign Corporations, infra, and see also §§ 2957 et seq., 2985, supra.

only be joined when brought into the jurisdiction.26 Of course a corporation may be barred or estopped by privity in estate or law to some defendant by a judgment to which it was not a party.27

§ 3028. Between officers or promoters and members or stockholders. Those actions and suits which officers or promoters may have against members or stockholders, and vice versa, or which stockholders may wage among themselves, or officers among themselves, are individual not corporate. The corporation is not a necessary party to them unless it has an interest of its own or participated as a corporation in the thing complained of; but on general principles it may be a proper party. There is a considerable variety of such suits, and a treatment of them will be found in other chapters of this work.28 Thus in membership corporations the corporation is a necessary party if restoration to membership is sought against members who excluded plaintiff,29 but if nothing is sought but enjoyment of membership rights without its active intervention it need not be joined.30 Similar

26 Foreign corporation cannot be joined as defendant in creditors' suit where it is not served and does not appear. Elkhart Nat. Bank v. Northwestern Guaranty Loan Co., 87 Fed. 252.

27 See 3124, infra, as to effect of judgment, and see also on the general law of res adjudicata, such works as Freeman on Judgments and Black on Judgments.

By consolidation or succession the later corporation is ofttimes bound by what

was adjudicated against the predecessor. The adjudication enters into the rights so devolved. See generally chapter on Consolidation and Merger, and chapter on Reorganization, infra. A similar principle would apply where the corporation resumes its property after a receivership. See chapter on Receivers, infra.

With reference to the necessity of joining the corporation in a suit by parties who are trustees for its use, see Hecker v. Cook, 20 Colo. App. 282, 78 Pac. 311.

28 See Chap. 42, supra, and chapter on Stock and Stockholders, infra.

Consult also §§ 165, 166, supra, as to liability of promoters to subscribers, and §§ 627-629, supra, as to remedies of subscribers or purchasers in case of fraud, and § 134, supra, as to relation of promoters to stockholders or subscribers.

Corporation should be party on bill to remove officers. Krecker v. Shirey, 2 Pa. Dist. Ct. 24.

In action to obtain relief from conversion of treasury owned shares to the use of officers, and to prevent excessive assessments, the corporation is a proper party defendant. Marshall v. Golden Fleece Gold & Silver Min. Co., 16 Nev. 156.

An injunction against trustees in respect to matters within their powers should have the corporation joined, but after the writ issued the nonjoinder would not invalidate it. Morgan v. Rose, 22 N. J. Eq. 583.

29 Ross v. Crockett, 9 La. Ann. 337. 30 It is not necessary that the corporation be joined as a party, where members of a church corporation composed of two separate classes institute action to restrain certain other

[§ 3031 principles will be found exemplified in the ensuing chapter on Stock and Stockholders. The question may be governed by statutes enabling specified persons to sue for official misdoing or the removal of officers or to assert other internal rights, but such a statute has been held not to apply to a pending action.31

§ 3029. Suits in right of the corporation by officers and stockholders. These suits are of two kinds, those of an equitable nature, commonly called stockholders' suits, and those of a statutory origin and authority, such as that in New York, brought by an officer or director or stockholder for relief against official misdoing. They are both fully treated in appropriate places. In the former class of actions the corporation is a necessary party, in the latter the statute determines and it must be consulted.32

§ 3030. - Insolvency, receivership, bankruptcy and dissolution suits. These suits are distinctive and technical not only as conducted in chancery but also under the numerous statutes which regulate them. They have received a separate treatment, which is hereby referred to, with the general statement that the corporation is a necessary party because of the fact that its very existence and self-control is the prime matter of the suit.33 The fact of a corporation being affirmed by such a suit inhibits the pleading as an excuse for nonjoinder that it was not and could not be a corporation.34

§ 3031. - Creditors' suits against officers or stockholders or debtors of corporation. The general subject of creditors' bills is treated

members from barring plaintiff members from occupying the church a portion of the time for separate services as the by-laws provide. Peterson v. Christianson, 18 S. D. 470, 101 N. W.

40.

31 See Chap. 42, supra, as to statutory remedies against officers and directors.

On a bill by stockholders against directors for waste and misapplication of funds, the corporation should be made party. (This suit was pending and was not affected by the statute enacted to regulate such suits.) Robinson v. Smith, 3 Paige (N. Y.) 222, 24 Am. Dec. 212.

32 Equitable actions by stockholders, see chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra.

Statutory remedies against wrongdoing officers and directors, see Chap. 42, §§ 2670-2685, supra.

Statutory remedy to try title to corporate office or to contest elections, see §§ 1830, 1831, supra.

33 See chapters on Insolvency; Bankruptcy; Receivers; Forfeiture, Dissolution and Winding Up, infra.

34 Lincoln Park Chapter No. 177, R. A. M. v. Swatek, 105 Ill. App. 604, aff'd 204 Ill. 228, 68 N. E. 429.

fully in a later chapter, and the pursuit of officers' and stockholders' liability for the satisfaction of creditors is further treated in another chapter. Both these are to be consulted to see the necessity or propriety of joining the corporation as a party defendant. The chancery rules are no longer a safe guide for the reason that many statutory regulations of practice have intervened or even displaced the former procedure.35 If the debtor primarily liable is not the corporation, and it stands merely as a secondary party having or thought to have available assets, it may be a proper or a necessary party.36

§ 3032. Suits on contracts or causes running in name of officer, agent, etc. It is well settled that the corporation can sue as plaintiff whenever the contract or other cause of action really belongs to it, though it does not run to it in its true corporate name. At common law this was accomplished by alleging that the promise was made to it by the name in which the contract runs, and that it is the same party as that intended by said name. In equity and also under the codes of procedure the rule that the real party in interest should sue brought the same result.37 A like rule prevails where the corporate name has been changed from that to which the contract runs.38 The most common instance of this is where the contract is made in the name of an officer or agent but in fact for the corporation.39 Of course there is always a previous question whether or not the contract was one in

35 See chapters on Execution, etc., and Creditors' Bills; Stock and Stockholders, subds. on Liability of Stockholders, infra, and Chapter 42, subds. on Liability of Officers, supra.

36 This does not depend on any principle of corporation law, and satisfactory precedents may be found in any standard work on Creditors' Bills. Indeed the cases hereinafter cited on creditors' bills against the corporation as the primary debtor will afford precedents where the secondary party is properly or necessarily joined, and these are authority on the point.

On a bill to reach assets of a bankrupt promoter the corporation may be a proper party to an accounting. Kimmerle v. Dowagiac Gas Co., 159 Mich. 34, 123 N. W. 565, 16 Det. L. N. 855.

37 This is nothing more than an application of a well-known rule of

agency and contracts. See treatises on those topics.

See generally cases in notes following in this section.

May sue in assumpsit on note made to it under another name. Medway Cotton Manufactory v. Adams, 10 Mass. 360.

38 A corporation having had its name changed can sue as plaintiff on obligations running to it by the old name. Northwestern College v. Schwagler, 37 Iowa 577.

39 Alabama. Note to "treasurer of the [name of corporation]" is a note to it. Alston v. Heartman, 2 Ala. 699.

California. The corporation as real party in interest can sue on a contract know to be its own, but made in the name of its officer. Escondido Oil & Development Co. v. Glaser, 144 Cal. 494, 77 Pac. 1040.

tended to run to the corporation, where it is made in the name of an officer or agent. The pleader will assure himself on that point and frame the action accordingly.40 It may also sue as plaintiff where it is the successor in title to the original promisee or obligee.41 A trustee should sue for injuries to the trust property held for the benefit of a corporation,42 but if it has an equity in a property or chose of which the title is in the stockholders, it may sue to protect it, making them parties as may be necessary.43 The corporation as a trustee of a charity may sue for the charitable fund notwithstanding the gift specified that a certain committee should call for and receive it,44 but where the cause accrues to the officer as an individual, even