Kelley v. Miss. Cent. R. R. Co. this defendant exists at all for any purpose, as a question of fact to be ascertained in determining whether the plaintiff is entitled to a judgment by default. He insists that he has the right to take his judgment, at the peril of its being void if there be in fact no corporation. In England there can be no judgment by default without appearance, and if the defendant refuses to appear, the plaintiff must enter appearance for him, and in doing so, must make affidavit of proper service on the defendant; this may be contested by cross-affidavits and motions to quash the service and the writ. 3 Chit. Prac. 264, 277, 280. In Alabama and other States the court will not give a judgment by default against a cor. poration, without a judicial finding, recited on the record, that the service has been of a character to bring the corporation into court. Oxford Co. v. Spradley, 42 Ala. 24; Talladega Co. v. McCullough, Id. 667. But we have no such reasonable requirements in Tennessee. The sheriff may simply return the process "executed," and the presumption is that it is regular, and on the proper officer. Any party aggrieved has his remedy by action for a false return against the sheriff, or by bill in equity to set aside the judgment. Wartrace v. Turnpike, Co., 2 Coldw. 515; Ridgeway v. Bank, 11 Humph. 522; Bell v. Williams, 1 Head, 230; Baxter v. Ervin, Thomp. Cases, 175; Gardner v. Barger, 4 Heisk. 669, 671. But even in Tennessee one is not put to an action for a false return or a bill in equity to avoid a wrongful judgment. In Graham v. Roberts, 1 Head, 55, a writ against Garret Graham was served on Jared Graham and the bill in equity of the latter to avoid the judgment was dismissed, because he did not appear to contest the judgment by default in the first instance. In Bank v. Skillern, 2 Sneed, 698, a judgment by default was set aside on the affidavit, and in Jones v. Cloud, 4 Coldw. 236, 239, on the motion of one not a party to the record; and in both cases Kelley v. Miss. Cent. R. R. Co. it was held not to be error. No Tennessee case has been found which shows how the alleged extinction of a corporation may be contested in a suit against it in its corporate name; and until modified by the statutes above cited, the law was settled, that upon the civil death of a corporation it could no longer sue or be sued, and could have neither officers nor stockholders; and the same would doubtless be the rule under these statutes after the five years of qualified post mortem existence have elapsed. White v. Campbell, 5 Humph. 37; Hopkins v. Whitesides, 1 Head, 33; Ingraham v. Terry, 11 Humph. 571; Blake v. Hinkle, 10 Yerg. 217; Nashville Bank v. Petway, 3 Humph. 522. It is said in R. R. Co. v. Evans, 6 Heisk. 607, that the question of extinction must be raised "by a plea in abatement, motion or other proceeding," but there is nothing to indicate by whom these may be taken. In this case, and uniformly, it is held that a failure to make the question by some proper proceeding admits the corporate existence. The necessity, then, for some proceeding to abate the suit is obvious. If there be any appearance, except to make that contest, the matter is ended in favor of the existence, for afterwards all parties are estopped to deny it. Muscatine v. Funk, 18 Iowa, 469. The marshal cannot safely assume to determine the question and refuse to execute the writ, particularly in a case like this where there has been a corporation which has issued bonds and built a railroad, and as to which there are outward and tangible evidences of continued existence. The plaintiff may take a judgment at his peril, and if there be no corporation, it is void, as we have seen. Thornton v. Railway, 123 Mass. 32. But I do not see that he is entitled to this as a matter of right, nor that the stockholders or others interested should be compelled to submit to such a judgment without a preliminary contest over the fact of corporate existence; because, if there be a corporation, Kelley v. Miss. Cent. R. R. Co. the judgment by default is binding, and all opportunity to make other defenses is gone. This throws on all interested the peril of determining the important question of existence for themselves, without the aid of judicial inquiry into the disputed facts, and is an immense advantage to a plaintiff; and it would, in my opinion, be a reproach to the law to permit it upon any technical theory that the officers and stockholders are not parties, and therefore cannot plead in the suit. That they are not parties even when served with process cannot be denied. Bronson v. LaCrosse R. Co., supra; French v. Bank, 7 Ben. 488, S. C. 11 N. B. K. 189; Apperson v. Ins. Co., 38 N. J. L. 272; Blackman v. R. Co., 58 Ga. 189. How, then, can the defense be made? It is said in Oxford Co. v. Spradley, 46 Ala. 98, that there is no precedent for a plea by a corporation of its own non-existence, that it is an inappropriate plea and an inconsistency in itself; but it is intimated in McCullough v. Ins. Co., Id. 376, that such a plea is permissible in cases of misnomer and dissolution. In W. U. Tel. Co. v. Eyser, 2 Col. 141, Mr. Justice BELFORD says that such a plea by the corporation itself is not anomalous, and is abundantly established by many respectable courts, and he concludes it is a plea in bar and may be joined with the general issue; but the majority of the court held it could be pleaded by the corporation neither in abatement nor bar, that such a plea was felo de se. See, also, Gulf R. R. Co. v. Shirley, 20 Kas. 660. Notwithstanding this it will be found that the plea has been made by the alleged corporation itself in many cases. Foster. v. White Cloud, 32 Mo. 505; Hobich v. Folger, 20 Wall. 1; Boyce v. M. E. Church, 46 Md. 359; Greenwood v. Railroad Co., 10 Gray, 373; Dooley v. Gloss Co., 15 Gray, 494; Thornton v. Railway, 123 Mass. 32; Gatt v. Adams Exp. Co., 100 Mass. 320; Inman v. Allport, 65 Ill. 540; Pilbrow v. Railway Co., 5 M. G. & S. (57 E. C. L.) 440. Kelley v. Miss. Cent. R. R. Co. In Massachusetts it is held that the plea must be by the corporation, and that an officer or stockholder cannot make defense. Townsend v. Free Will Baptist, 6 Cush. 281; Byers v. Franklin Co., 14 Allen, 470; Robbins v. Justices, 12 Gray, 225. Yet in Buck v. Ashuelot Co., 4 Allen, 357, and Foster v. Essex Bank, 16 Mass. 245, the fact of nonexistence was otherwise made to appear in the one case by one having no right to plead, and in the other by suggestion of counsel. In Callender v. Painesville Co., 11 Ohio St. 516, the question was directly adjudicated. An officer not even served with process, was allowed to file his affidavit and move to dismiss the suit, because the defendant had no corporate existence, the court holding that he was not an intruder; that a judgment against the company would be against all the members collectively, including him as an individual, and that any member under the circumstances, might make the motion to dismiss and be heard upon it. And in Pilbrow v. Railway Co., 54 E. C. L. 730, the right of the person served to make the defense was upheld. See, also, Stevenson v. Thorn, 13 M. & W. 149; Stewart v. Dunn, 12 Id. 655. The defense was made by the persons served with process pleading in abatement in Rand v. Proprietors, 3 Day, 441, Evarts v. Killingworth Co., 20 Conn. 447, and Express Co. v. Haggard, 37 Ill. 465; and in Elliott v. Holmes, 1 McLean, 466, it was held that a person served with process against another might make the defense either by such plea or suggestion of counsel. In Quarrier v. Peabody Co., 10 West Va. 507, it is said that a plea in abatement by a corporation should not be by attorney, but by the president individually, to avoid the effects of appearance by the corporation; that a corporation should never plead in abatement in its corporate name. Kelley v. Miss. Cent. R. R. Co. Persons sued in a representative capacity as executors, trustees and the like, may plead that they hold no such relation. 1 Danl. Ch. 631; Story Eq. Pl. 732. This is quite analogous to the situation of the parties here. It is true, executors are parties to the writ, but only in their representative capacity; and where they plead "no such executor," it is their individual plea. So the head officer of a corporation sued as such may deny that he sustains that relation. Stewart v. Dunn, supra; and in Stevenson v. Thorn, supra, it was said that a person served with process is, for some purposes at least, to be considered the defendant. And there is another analogy in the case of a judgment of outlawry, where, if the outlaw dies, the death may be pleaded by any person to release his property. 1 Tidd. 144. The defense of the non-existence of a corporation, sued as such, may also be made by an attorney in his own name suggesting it on the record. Greely v. Smith, 3 Story, 657; Mumma v. Potomac Co., 8 Pet. 281; Pomeroy v. Bank, 1 Wall. 23. Whether he be the attorney of the corporation must depend on whether it exists or not; if not, he must be the attorney of some one else having an interest in the matter, for a nonexisting corporation can not in the nature of things appoint an attorney under a common seal, and the dissolution would revoke any appointment already made. The objections suggested against any method of making the defense come from pressing too far the doctrine that a corporation has an independent existence. This ens rationis called a corporation is, after all, only an incorporeal defendant, and it cannot, until its existence is established, have any independent status separate and apart from the personality of those composing it. To speak of it as dying is a somewhat false analogy. The law provides heirs, executors or administrators for dead persons; but. an extinct corporation must be represented by the individuals who originally com |