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In this connection, it may be well to refer to the contention of the learned counsel for the respondent, that it appears from the memorandum 482 of the trial judge that the failure to plead the Wisconsin statute was not argued or presented or ruled upon by the trial court, and hence should not be considered upon this appeal. But the demurrer went to the entire complaint, upon the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a cause of action. It was a general demurrer, which raised an objection to the entire complaint, without specifying any particular cause or defect, and it was sufficient to reach this substantial omission to plead the statute of Wisconsin, if any such exists, warranting the bringing of this action.

The order overruling the demurrer was also a general one, and must be deemed to have been intended to cover all defects in the complaint, notwithstanding the statement in the memorandum of the trial court that it did not decide the question of whether plaintiff should have pleaded the statute of the state of Wisconsin. The order overruling the demurrer must be taken with all the force and effect which its language implies, uncontrolled by the memorandum of the trial court.

Our conclusion is that the order overruling the demurrer must be reversed.

So ordered.

ACTIONS-TRANSITORY-PERSONAL INJURIES.-An action to recover for injuries to the person of the plaintiff is transitory, and the courts of this state have jurisdiction over it if the defendant is served with process therein, though both parties reside in another state where the cause of action arose: Eingartner v. Illinois Steel Co., 94 Wis. 70; 59 Am. St. Rep. 859, and monographic note; monographic note to Morris v. Missouri Pac. Ry. Co., 22 Am. St. Rep. 24; Burdict v. Missouri Pac. Ry. Co., 123 Mo. 221; 45 Am. St. Rep. 528.

EVIDENCE-LAWS OF OTHER STATES-PRESUMPTION.Statutes of another state must be pleaded and proved as any other fact. The courts will not take judicial notice of them: Schultz v. Howard, 63 Minn. 196; 56 Am. St. Rep. 470, and note; Hancock Nat. Bank v. Ellis, 166 Mass. 414; 55 Am. St. Rep. 414, and note. It is presumed that the common law prevails in a sister state: Burdict v. Missouri Pac. Ry. Co., 123 Mo. 221; 45 Am. St. Rep. 528; unless the contrary is shown: Carpenter v. Grand Trunk Ry. Co., 72 Me. 388; 39 Am. Rep. 340; Connor v. Trawick, 37 Ala. 289; 79 Am. Dec. 58. This presumption has been held to arise only when states have a common origin, or are populated by citizens coming from states having a common origin: Peet v. Hatcher, 112 Ala. 514; 57 Am. St. Rep. 45; St. Sure v. Lindsfelt, 82 Wis. 346; 33 Am. St. Rep.

HOLDEN V. GREAT WESTERN ELEVATOR COMPANY.

[69 MINNESOTA, 527.]

ACTIONS AGAINST CORPORATIONS-PLEADING-CORPORATE EXISTENCE-DEMURRER.-Failure to allege the corporate existence in an action against a corporation cannot be taken advantage of by general demurrer.

CORPORATIONS-ACTIONS BY OR AGAINST-PLEADING CORPORATE EXISTENCE.-In an action by or against a corporation, it is unnecessary to aver its corporate existence, except in cases where the action, in its gist or substance, involves the fact of corporate existence, in which case it must be alleged the same as any other fact constituting the cause of action.

J. A. Dalzell, and Koon, Whelan & Bennett, for the appellant. Baldwin & Patterson, and E. E. Harriott, for the respondent. 528 MITCHELL, J. This action was brought to recover damages for the wrongful conversion of the personal property of the plaintiff by the defendant. The title of the action was "J. H. Holden, Plaintiff, against Great Western Elevator Company, a Corporation, Defendant," but there was no allegation in the complaint that the defendant was a corporation. The defendant appeared by the name by which it was sued, and demurred to the complaint on the ground that it did not state 629 facts sufficient to constitute a cause of action. From an order overruling the demurrer, the defendant appealed.

The particular objection urged against the complaint is that it contained no allegation that the defendant was a corporation. We have, then, the anomaly of the defendant appearing by the name by which it was sued, thereby admitting that it is an entity of some kind capable of appearing as a party to an action, and objecting to the complaint because it does not state what kind of an entity it is. And even if it is necessary, in an action against a corporation, to allege its corporate existence, it would seem to be illogical to hold that the omission to do so could be taken advantage of by general demurrer.

But, waiving this question, we are of opinion that in an action by or against a corporation it is unnecessary to aver the incorporation, except in cases where the action, in its gist or substance, involves the fact of corporate existence, in which case, of course, it would have to be alleged the same as any other fact constituting the cause of action. The decisions on this question are conflicting, sometimes in the same jurisdiction. Our own decisions are not entirely free from this criticism. But, in our judgment, the doctrine just stated is sound on principle, and supported by

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the weight of authority. No averment of incorporation was required at common law, and we have no statute requiring it. When an action is brought by or against a corporation, there is no more reason, in the nature of things, why it should be necessary to allege that it is an artificial person than there is in an action by or against a natural person to allege that he is such. It is not a fact which enters into or constitutes any part of the cause of action. We strongly intimated in Howland v. Jeuel, 55 Minn. 102, that such were our views of the law, which are in accord with those expressed by Mr. Freeman in his notes to Harris v. Muskingum Mfg. Co., 29 Am. Dec. 375, and to Miller v. Pine Min. Co., 2 Idaho, 1206, 35 Am. St. Rep. 291, in which we fully concur.

Order affirmed.

CORPORATIONS-ACTIONS AGAINST PLEADING CORPORATE EXISTENCE.-The decided weight of authority sustains the proposition that in an action by or against a corporation in which it is designated by a corporate name, there is no necessity of alleging the creation or existence of the corporation: Extended note to Miller v. Pine Mining Co., 35 Am. St. Rep. 291. If it is sued by its corporate name, this will be sufficient, and the declaration will not be demurrable for want of allegations of greater certainty as to corporate existence: Extended note to Harris v. Muskingum Mfg. Co., 29 Am. Dec. 375. Compare Citizen's Bank v. Corkings, 9 S. Dak. 614; 62 Am. St. Rep. 891.

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INSURANCE.-AN ACTION BY A MORTGAGEE may be maintained on a policy of insurance issued to and in the name of the mortgagor, providing that the loss shall be payable to the mortgagee as his interest may appear, where the amount of the debt secured by the mortgage exceeds the amount of the insurance and the whole value of the property.

Action by mortgagees upon a policy of insurance against fire issued to the mortgagor, but made payable to the mortgagees as their interest might appear. A demurrer to the complaint was sustained in the trial court, and the plaintiffs thereupon appealed. Fewell & Brahan, for the appellant.

Miller & Baskin, for the appellee.

44 WHITFIELD, J. The precise question presented by this record is this: When the owner of real and personal property mortgages it to a lender of money for a loan, and then insures the said property in his own name, the contract of insurance providing that the loss shall be payable to such mortgagee as his interest may appear, 45 and the amount of the mortgage debt exceeds both the whole amount of such insurance and the whole value of said property, can the mortgagee, in such case, the property being destroyed by fire, maintain an action at law, in his own name alone, on such policy? That he can is clear on principle, and thoroughly established by the decided weight of authority: See, as putting the matter at rest, the authorities cited in the exhaustive note to Chipman v. Carroll, 53 Kan. 163; 25 L. R. Ann. 305; Motley v. Manufacturers' Ins. Co., 29 Me. 337; 50 Am.

Dec. 591; Maxcy v. New Hampshire Fire Ins. Co., 54 Minn. 272; 40 Am. St. Rep. 325; 2 Wood on Fire Insurance, 112; 2 May on Insurance, 3d ed., sec. 449, p. 1014; Ostrander's Fire Insurance, sec. 282, p. 602; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6; and compare Georgia Home Ins. Co. v. Stein, 72 Miss. 945, 950.

Cases cited by learned counsel for appellee are not in point, except Williamson v. Michigan Fire etc. Ins. Co., 86 Wis. 393; 39 Am. St. Rep. 906. This case cites Hodgson v. German Ins. Co., 86 Wis. 323, but in that case the mortgage debt "was considerably less than the amount of insurance." It also cites Chandos v. American Fire Ins. Co., 84 Wis. 184, the unsoundness of which case is demonstrated in the note to it in 19 L. R. Ann. 321, where "the peculiar mistakes" of the opinion in that case are severely criticised. It also cites 2 Wood on Insurance, 1122, where that author, on page 1124, expressly says: "But where the interest of the payee covers the whole loss, he may sue in his own name." It also cites Martin v. Franklin Fire Ins. Co., 38 N. J. L. 140. But, as is shown in note to Chipman v. Carroll, 25

L. R. Ann. 308, that case holds that either mortgagor or mortgagee may sue. Fire Ins. Co. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58, is a case where the insurance was for fifteen hundred and fifty dollars, and the mortgage for ten hundred and eighty dollars, and the opinion goes on the ground that to allow the mortgagee to sue in such case alone would be to "split one contract into two causes of action," and that the provision, in such case, is a mere appointment of a payee of part of the money.

46 But this very case is cited in May on Insurance, volume 2, section 449, page 1014, note 7, where it is shown that the holding was because the mortgage debt was less than the amount of the insurance. It is also distinguished in the note to Chipman v. Carroll, 25 L. R. Ann. 308, though it should be there stated, not that "the mortgage did not cover all the property insured," but that the mortgage debt was less than the amount of the insurance. But, finally, the court, in Fire Ins. Co. v. Felrath, 77 Ala. 199, 54 Am. Rep. 58, itself says: "In some of these cases [holding that the mortgagee can sue alone] the appointee's claim equaled or exceeded the whole sum insured, which, of course, involved no splitting up of the cause of action. This distinguishes such cases from this."

Another case cited by learned counsel for appellee is Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391, decided in 1858. This case overrules two earlier cases, and three judges dissented, and, besides, it is distinguished in Pitney v. Glens Falls Ins. Co., 65

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