# Respondents Brief — Texas & Pacific R. Co. v. Pottorff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0052%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1934 - **Citation:** 291 U.S. 245 ## Text . Bea WILLIARD,W. W. a a S # pr See » (OL ae! te LLNS ae pe SUBJECT INDEX. ¥ INDEX. CASES CITED, Page BREN E ARBRE ER Se eS RRS eal OAR a Home hie. Co. v. Augusta, 93 U.S. 116; 23 L. Ed. 825 OSs cae ’ Houston v. Utah Lake Etc. Co., 55 Utah 393; ay Pac. 174; 2 4 Se eee e ees eet 12 Keatley v..Furey, 226 U. S. 399; 57 L. Ed. 78... ‘Tei 28-31 Kinsler v. Cas. Co., 103 Nebr. 382; 172 N. W. 33 .\...0.....0... 21 Kipp v. Miller, 47 Colo: 598; 108 Pac. 164...0..0..0.\o.0. 18 -Laekmann v.Sup. Council, 142 Cal. 22; 75 Pac. 583 \\............ ‘36 Life Ass’n v. Fassett, 102 111..315............. Loicadasogties peru Sd ot 19 List v. Com., 118 Pa. 322; 12 Atl. 277............... Sy. Maen 11 Liverpool L. & L. & F. Ins. Co. . Mass., 10 Wall. 566; 19 jp IRE CIT ed CE SE SI EOL ESE Se Tn ee 10 Lucifer Coal Co. v. Buster, 64 Colo. 179; RR WU Oi cracesenns ‘13 McGoon 'v. Scales, 9 Wall. 23; 19 L. Ed. 545 20000000... 1.-18 McRae v. Kan. Piano Co., 69 Kan. 457; 77 Pac. 94..0000000......... 24 ~ “+Marian Phos. Go. v. a ene 23 Met. Rub. Co. v. Place, 147 Fed. RENE ESaDe BOUT RRR a! NS ON 9 Morgan v. N. Y. Natl. Bldg. & Loan Ass’ n, 73 Conn. 151; 46. RRA. LGR ALERT Bite EP ORE AS ei eoesereeeenes 24 Muma v. Potomac Co., 8 Pet. 284; 8 L. Ed. 945.. nines aan 25 Mutl. Life Ins. Co. v. Cohen, 179 U. S. 262; 45 L. Ed. 181... 17 Oklahoma Nat. Gas. Co. v. Okla., 273 U. S. 257 ; 71 L. Ed. WE scssscssscarcarncecbeanscoheeiouses ttesembenckeseadattcanie cuadete 23 Olds v. City Trust ete.:Co., 185 Mass. 500; 70 N. E. 1022: ae he RL eee 19 O’Sullivan v. Douglas, 124 Ky. 243; 98 S. W. 990 ................ & Paul v. Virginia, 8 Wall. 168; 19 L. Ed. 357... ie adict ae Pendleton v. Russell, 144 U. S. 640; 36.L. Ed. 574... . 25 *. People v. Thurber, 13 W544 o.o--ccscccccccccesssssssesesecsesecessssssessees 10 & ‘ ¢ B - : INDEX : CASES CITED. re Page Reife v. Rufdle, L038 UL S. 222 | L4-2 1-28 Remington Vv. Samana Bay Go., | 40 Mass. 494; 5 N. Ie. 299 “oy Richards v. Ackerman, 24 1. R.A. 208 11 Ridell v. Rochester Ger. Ins. Co.,.33.R. 1.45; 85 AtL 273) | 2 Roche v. MeDonald, 275 USS. 449; 72-1. dl. 865 : pas Rowers v. Adriatic Fire lis. Co., ‘148 N.Y. B41: 42-N. Ef. Ld ee . 1619 Sec. Sav. Ete. Co. ve Rogers, 6 Idaho 626; 57 Pa. 316 9 Schloss v. Met. Sur. Co., 149 la. 3882 ; 36 Singer v. Hutchinewn, 83 Ul App. 675; 183 HL 606; 75 Am. St. Rep. 183; 56 NEL 388 18-19 os Singer ve T. Stone & Hutchinson, 176 uf A851 NE. 622 34 i Smith v. Winchester, 96 Me. 480; 52 Atl 1017; 90 Am, St. Rep. 414 ) State vi Phipps, 50 Kan. G09; 18 LR. AL 657234 Am. St Rep. 12; 4 Inters, Com. Rep. 2997 31 Pac. 1097 lI State v. Kid. Loan Co., 113 Ta. 439; N. W. 2 State v. Dudley, 106 So, 364; 159 La. 872 38 iain v. Colman, 11 Col. App. 495755 Pae. 293 13 Sterrett v. Second Natl. Bank, 248 U.S. 73:68 I. Ed. 135. 28 Stetson v. New Orleans City Bank, 2 Ohio St. 167: : a ) Ohio St. 577 ; " 18 ° Townsend v. Delaware Glue Co., 12 Del. Ch. 25; 108 Atl. ae eee slasecshgcinade'seasiaids eoelien anaes bail 13 Venable v. Granite Co., 185 Ga. ‘508: 69 §. FE. 822; 32 L R.- pe SR De ape rte s . 2 o w= Williams v. Gaylord, 186 U.S. 157; 46 L. Ed. 1102 15 — “Williams v. Gold Hill Min. Co., 96 Fed. 454 34 593 27 Zacher v. Fed. Tr. & Safety etc. Co., 106 Fed. - INDEX. . 3 : Sec, 8402 Towa Code Sec. 8613 C1 lowa Code Sec. $964 lowa Code . Sec. 6212 Revised Codes of Montana 1921... _.. STATUTES CITED. ..22-27-32-35 ee Pe OB PON YEE Page . 2’ ) t-- gree . 34 INDEX. TEXTS CITED. - “ “to © iat ~ Page IEE © sediliecomsecevepcaiioces) ecccadaaiuties vintepeavonintesl piguninccean ae Ye ° AT A.L. R. 1564 ......... FCT BEATER Pi NADIR AMIS Ne APL ON to 13-16 | 7 Cal. Jur. 217, Sec. 701 ..... PNA ARB SDD ROSE ET Spas era oat ...2. 36° ee, Oe Oe es ans eee ere 11 so ce eo eh EL Me RT Ae 17 = A TP UN MI, I se csc eicensiaciestneveressoeevesniticn haat 18 17 Fletchers Enc. Corp. Sec. 8318) .................... aes: “Cie i Freeman on Judgments, (5th Ed.), Vol. 1, Sec. 141 _.... y eee aan SR 14 _ WSR.C. L. 618 Sec. 58 ............. poh esse earomieaaeasaaiemnnines 4 I ria heceecrccnruiaes Pee as mticetces 12 I oo Pon Seer foe asec i aS te REN Be 4-13 RS BTR aeesnect one renee MAR ta Icon Forts teraani I 4 Be IE MID oepeicveconccerncateetderends Soar ENN aR SCONE "16 Wn ee DO Me 16 ¢ 14C. J. G1, See.3 ............. eh saiseaad atianseteiasetsana SECU rhe See Bu Vc DPSS SP AUT OR e EROS et 34 IMIR cic casicc tears cors oT Nar EN Ea ROR AR ASE ok 19 e.2. 10 «.......... Fis cee eoOM cs Wintec SOP once 72s Pate "4 (AE AG TERRIA Lt AARON SPN SRA RRA SETS > Peer SRO 33 le I BE os as. cones paspubasunwenteanenooebaderdaunicneions diem alaris 4 ee, ne eisai Cn ee 4 BT pce cece anaahen Pec ORAM 9 hPL D PI IC NA ASRS pede 5 Se ee he i I oe cecesaccies snnicnccceneieciacenni _ Sollidtanp rasta bow bs tees oes 5 $40. 5.526 .........:. PREMIED Asahi CENT crate Li nl oS A Metacies 6 S00 ee oe RST Met dole | Brae. iS 4 eens tie I Ns: UNO Sc cases cxcocscpccmeosnneecsscasvelenpeepenmeees Sere ae a a ae A ILCs BO SMe LORE aS ek A A Palle Ee niece Re CALE REST Shee 37 mn aE sland ia clleuisosubeyuaipedaaeeainenuieneanie o7 ie aes I os csctedes ae esoitia adeiniistgieneneaiee 36 1 Clark on Reeéiyers (2d Ed.), 463 __...... Nijehinadicaairatanemenne 26 1 Clark on Receivers, MEE. xnccanassoneninnees ESCO 26 1 Clark on Receivers, Sec. 346° .......... Uy... RRR eee eee ees 27 1 Clark on Receivers (2nd Ed.) 181, Eee 27 1 Clark on Receivers (2nd Ed. = ¢ (2) 5) een mee 27 2 Charis cay Heceivens, Bet. GGT 2. asicercchercensengereccwrvctvenee ayant ae SUPREME COURT be OF THE » UNITED STATES | Case No.-449 ; October Term, 1933 E.W.CLARK, ( r as Receiver, ‘ Pe . Petitioner, versus . HARRY O. WILLIARD, W: W. WHEATON, and C. H. HAY, as Trustees of Gordon Campbell-Kevin Syndicate, a Common-Law Trust, and GORDON CAMPBELL- KEVIN SYNDICATE, a Common Law Trust, ’ “roe 4 . Respondents. cm \ Supplemental Brief of Respondents NATURE OF THE CAUSE. As we view the question before this Court, there is in- volv ed an essentially. different legal situation than ig stated by petitioner in his iste: Sepa Heretofore respondents filed their brief in ‘opposition to the granting of the writ of certiorari herein, based, as they viewed the matter, upon the questigns of jurisdiction of this court. . The questions of jurisdiction. were so intimately interwoven ”» ld . = 3 ad x with questions Which would arise on the merits, that undoubt edly the Court felt constrained to hear the case upon its merits Which would not necessarily preclude a rezexamination of. th: jurisdictional questions, 7 - | FURTHER STATEMENT OF THE CASE. To correctly éinderstand the precise situation of the arties, it is impoitant at this juncture to direct specifically to tin attention of the Court, that the action in which, Respondents judgment ‘was recovered, Was an action entirely distinct from the proceeding of Mieyr versus Federal Surety Company (2.48 to 63.inclusive), all as appears set forth in the judgment roll ® the latter proceeding. ‘The: record before this: Court GR. 59) shows that the amended Compilajnt CR. 49 to 59 inclusive), was filed January 31, 1928,~ : ahs Tole The Answer ¥tseil Was filed F@beuary 29, 1928 (2.60). ‘Fie obvious fact is that the action was instituted sometime prior to January 31, ievs8. The defendant,— then admittediy : SUL JUL by its general appearance and answer (R. 5Y) vested tie Dis- trict Court of the Tenth Judiejal District for Fergus County, with jurisdiction. If that court ever lost jurisdiction of the caee, it lost it because of the subsequent dissolution of ‘the de- ° %, 18 domestic corporations have. been held insufficiently explicit to embrace foreign corporations. Thus, the annotator derives the law from all American cases on the subject. AT A. L. R. 1564. “Statutes which, operate so ‘as to. prolong corporate _ existence, have, in several states, heen held inapplicable to foreign corporations; but the Kentucky enactment has . béen declared to be applicable to foreign corporations hav- | _ing their principal place of business in that state.” “The Onio enactment preventing the abatement of ac- tions has been treated as controlling with regard to: for- eign corporations. The scope of an enactment may, of course, be extended to. foreign corporations by explicit words, contained ecitherin-the enactment itself, or in some other statute. Whether such an etxension should be predi- cated, isaa matter to be determined from the language used’ by the Legislature.” In 1 Cc. J. 147, it is said: “The question of continuing or reviving actions by or against a corporation after its dissolution depends upon the laws of the state in which the action is pending, and ‘a foreign statute relating thereto is of no avail.” Vi. ¢ If THE STATUTE PERMITS ACTIONS .TO BE CON- ° “TINUED FOR OR AGAINST THE CORPORATION BY NAME, THERE NEED BE NO SUBSTITUTION OF PAR- - TIES. requires substitution. Clearly it is within the — of a legislature to so declare. 2 Yy Kipp v: Miller, 47 Colo. 598, 108 Pac. 164: ' Steinhauer v. Colmar, 11 Colo. App. 495, 55 Pac. 293 ; Lucifer Coal Co, v. mueey, 64 Colo. 179, 171 Pac. oo 61; § Hazard v. Park, 294 Fed. 40; Townsend v. Delaware Glue Co.; 12 Del. Ch. 25, 103 Atl. 577; } Big Sespe Oil Co. v. Cochran, 276 Fed. 216; There need be no substitution of parties, unless the statute - specific facts in this ease, and thereby show a clear differentia- 14 } fy hs Op See sf ped . . : Iixie Mfg. Co. v. Ricks, 153 Ga: 364, 112 S. E. 870: Finger & T. Stone Co. v. Hutchinson, 176 Ill. 48, 5l N. IK. 622 12K. CLL. vi . VIL i 3 * DOCTRINE OF REL FE V. RUNDLE IS A CAREFULLY’ 4 LIMITED ONE. FOR OBVIOUS. REASONS, IT HAS NOT. BEEN EXTENDED IN ITS AP PL ICATION TO CASES NOT } FALLING CLEARLY WITHIN THE RULE. WHAT ARE . THE LIMITATIONS TO ITS APPLICATION? Petitioner has cited and insists upon the application of the ' rule of Relfe Vs. Rundle, 103 U.S. 222; and of Converse vs. Hamilton, 224 U.S . 243; and like cases. Those cases apply only | | | *, where there is (a), a statutory receiver; (b), appointed by—-—-—— a -—S¥ . “ ; 5 law; (¢), deriving title through a statute; and (d), not through a chancery decree ; and (e), where the: dissolved corporation S. ‘ Was not restrained or controlled px a statute of the foreign state Where it applied for admission and was admitted. To that end we shall endeavor to work out the rule applicable to the tion between those cases so cited, and the ease at bar. More-’ over, we shall show the Court the true ‘rule w hich this and other courts have ipplied to similiar, if not identical cases. Relfe v. Rundle’states an undeniable doctrine where there are no statutory limitations, that: . “Every corporation necessarily carries its charter _ wherever it goes, for that is the law of-its existence. It ) may be restricted in the use of some of its powers while . doing business away from its corporate home; but every “person who deals with it everywhere it bound to take notice of the provisions which have been made in its char- 2 ter for the. noe 2 and control of its affairs both in life and after dissolution.” ! That this statement is general and ‘would apply and was 42 Pe ' ‘invokes only a rule of expediency. “1s there applied to a case involving a set of facts unaffected by other important-principles will be obvious upon the most super- ficial examination. a | . For instance,.no constitutional ri~ht would be violated by the exercise of visitorial power in a foreign state; the rule rests upon expediency. we Williams vs. Gaylord, 186 U.S. 157: 46 L. Ed. 1102. _ Likewise the “death” of a-corporation, in its legal aspect, Montana, or any other state may, as a condition upon a whieh a forei gn corporation is admitted to do business, declare that causes of action, maintainable against the corporation. by name, —-shall survive dissolution. By such statute the corporate life, a: mere fi¢tion, is not legislated upon. _ VIII. MONTANA HAS NOT. UNDE RTAKEN TO SAY THAT A DISSOLVED FOREIGN CORPORATION Is ALIVE IN- MONTANA. IT HAS ONLY SAID THAT IT REMAINS SUABLE.’ . | In the sense. . that it is inherently impossible to breathe again the breath of life into a dead person or a dissolved ¢or- : por ation, an attempt to so do by legislation would appear in- - congrous’ Nevertheless, it is neither incongrous, nor does it involve any constitutional right to declare that rights and -remedies shall survive and be unaffected by either the death of a natural person or the dissolution (death) of a corporation. In Rogers v. Adriatic Fire Insurance Co., 148.N. Y. 34; 42 N. B. 515, the Court of Appeals of New York said: “That the foreign corporation, dissolved and dead in the domicile of its origin, should be deemed alive in the foreign state so far as to save the remedies of its own citizens against property within its own jurisdiction, is entirely possible and not at all unreasonable.” 16 ° This is true, upon the death of a. non-resident defendant. 1 C. J. 230, Sec. 480. . This is true upon the dissolution of a foreign corporation (A7 A. L. R. pp. 1557 te 1565, partly inclusive). The general rule, applieable in the United States, is well stated in 12-C. J. 464, which reads: . >” “Where, however, the pl: ice of domicile ond of the act or contract are not. the same, there has been some -diver- gence in the authorities as to the proper law to govern. ‘The continental writers. incline to the view that the per- sonal status ef an. individual, includizg his capacity to act ar to contract, accompanies him wherever he may go, and ° that the law-of his domicile will control no matter where che may be; and there are English and American authori- ; ties *w hich, have followed this rule, but the weight. of the common-law authorities is to the effect. that, in case of a contlict between the lex-domicilii and lex loci contractus aut actus, the latter will prevail. In the United States” practical necessity, arising from the great freedom of com- mercial intercourse ketween-the several states of the Union, would, in the absence a THE IOWA COURT, AT THE TIME OF PRONOUNCING JUDGMENT ‘RECOGNIZED THAT JUDGMENTS MIGHT _ BE ENTERED WHICH WOULD NOT BE SUBJECT TO COLLATERAL ATTACK, UNLESS SUITABLE PLEAS IN ABATEMENT BE FILED. . Clark was not precluded by the Iowa judgment,—at least Sse se eee Sot 20 ACCORDING TO THE EX*PARTH ORDER OF DECEMBER. ; au, 1931,-—(R. 26- 31), from appearing and pr esenting to the — Tenth Distriet Court of Fergus € ‘ounty, a plea, in abateme nt, for he was therein told (R. 30) “That KE. W. Clark, Receiver, x. 9 be, and he is hereby given leave in his discretion to ap- > pear, specially, or as may be necessary, i any action wherein Federal Surety is named as defendant, for the purpose of pre- senting a plea in abatement, motion to dismiss, or motion to ?. : ) \, quash,” ete: ' The lowa ¢ ‘ourt thereby RECOGNIZED THAT SUCH P Ro- CEDURE MIGHT BE NECESSARY, Had Clark appeared with . a plea in abate ment in that action, he would have been me t, as far as Montana is eoncer ned, successfully with the contention that when Federal Surety Company eame into’ Montana, it | agreed that it would be bound by Montana law both substan- tive and adjective; and that the action must proceed to a judy. . ment as instituted. Having been appointed in September, 1931 (R. 21) he could not have been ignorant of the pendency of the action. Due notice of the setting of the case for trial in May, 1982, was given. Counsel.originally employed were permitted ~ to be-retained therein, and it is not a rank presumption to in- dulge that Clark had actual notice of the pending trial. No sub- _ stitution Was necessary. Had his plea in abatement been pre- sented therein, and he had been aggrieved by the. decision against him, then he at least could have had standing to pre- sent the constitutional question,—which he now has, we sub- nit, no foundation for presenting to‘this Court. XI. AN ANALYSIS OF PETITIONERS’ AUTHORITIES, SHOWING THEIR IN APPLICABILITY TO THE FACTS IN THIS RECORD. ; . s ae | 21 We shall now analyze petitioners’ authorities with. the ob- jeet of showing that they are not i in point. ws Relfe v. Rundle, 103 U.S7222; 26 L. Ed. 337. The outstanding: features of this case are: — : 1. Life Association of America Was incorporated under the : laws of and domiciled in finsouriA large judgment was ‘or- dered against it, giving occasion for Relf, the, Insurance Com- ‘missioner of ‘Missouri, to invoke the dissolution provisions of the Missouri statutes: . (a) Providing for the institution by him of an action for dissolution and the appointme nt of the Insurance Commis-. sioner as statutory agent; and \ (b) It was provided by statute that upon judgment of: dis- solution —.° . Y. “All assets * * * shall vest in fee sidenie and absolutely, in the Superintendent of the Insurance Department * * *.- who shall hold: and dispose of the same for the use and * benefit of the, creditors,” etc. . Proc eSs_ in the action in Louisiana out of which the. de- ni. ‘arose, WAS SERVED AFT ER the dissolution proceed- gfe ‘ings were begun in the Missouri Court. — 3. There was no law of Louisiana, such as obtains in Mon- tuna, with respect to the right to sue the corporate entity after dissolution. — Ra, 4. This court carefully recognized that the. rule which it ‘applicd, the correctness of. which cantiot pe was unaf-. fected by any statutory limitations in Louisiana, for it was said: “No state need allow the corporations of other ‘states _ to do business within its jurisdiction unless it chooses * *; _but if it does, without limitations express or implied, the corporation comes in as it has been created—” Kinsler v. Casualty Company, 103 Nebr. 382; 172 | N. W. 33. 22 This is easily distinguishable from the case at bar. There. “was no Nebraska statute we by the court which imposed any ° limitation on the Corporatio when it came into the State; and, ‘on coming in, | “It expressly reserved the right to have its affairs and all property interests adjudicated with reference to the iIn- surance Commissioner, of New York.” — By statute i in-New York, upon dissolution the property. wis vested in the Insurance Commissioner. Statytes of Iowa cited: Section 8402 (R. 27) contains this peculiar provision con- cerning a dissolution suit: “Re erving, however, to the stockholders one creditors all rights now possessed by them.” Section 8964 (R. 27-28) provides that the Court, undergger- ‘tain circumstances, “SHALL DECREE A DISSOLUTION OF SAID COMPANY AND A DISTRIBUTION OF ITS EFFECTS, | AND APPOINT A RECEIVER THEREFOR.” Sec. 8613, C. 1 (R. 28) which was enacted in 1929, provides that ‘the Commissioner of Insurance “henceforth ~ 2 be the . receiver and/or Ifquidating officer fot any insurance company,” etc. We reserve a nore extended discussion of this statute for a‘later place in this Brief. ao. . Further analyzing the deciSions cited, it appears in: * State v. Fidelity Loan Co., 113. lows 439 ; 85.N. W. 638; Bi that the sections of the Code 1040 and 4113 there construed by the court do -ffat-seem to be those obtaining at the time of the . ‘ decree now in question. However, further than stating the common-law rule as to the effect of dissolution, which everyone | snbeben it has no bearing on this case. -* ~ Remington v. Samona _ Co., 140 Mass. 49475. .N. E, 292, is clearly not’ in point. No statute of Massachusetts was brought into controversy purporting to extend corporate life, OR DECLARING, that not- withstanding dissolution, the corporation was still suable. : Mariofi Phosphate Co. v. Perry, 74 Fed. 425. The decision was rested upon the very obvious fact that _ the Florida statutes extending corporate lifd were not aimed "at, cand did not apply to foreign corporations, the Court saying: . “These. last quoted sections jndicate that there was no purpose in the act to in anywise treat foreign corporations doing business in the state as Florida corporations.” , In Felts v. Natl. Life Ass’ n, 130 Ala, 413; 30 S. 374, The Court ‘simply holds that. the statute of survivorship was enacted solely to govern domestic corruiations, and does 4 j not apply to foreign corporations. Okla. Natural Gas Co. v. Okla., 273, U.S. 257; 71 _ L. Ed. 634, is in no sense, authority for the petitioner. The court simply held that under the.record it could not be ascertained whether liquidating Trustees had been appotnted as contemplated by "statute. The Court sfemed to recognize that the statute would _if the facts permittedits application, extend the corporate life. No foreign statute was involved. A domestic corporation was under consideration. Ridell v. Rochester German Ins. Co., 35 R. I. 5; 14 > * 85 Atl. 273. This case simply holds in line with several other American courts that the statute of Rhode Island was tt ae to denial to domestic and.not foreign corporations. . Gu edge Bros. L. Co. v. Wenatchee’ Land Co., 15 Minn. 488 ; 132 N. W. 992. | This. case is very simple. A dissolved Washington corpora- tion undertook to maintain an action in Minnesota. IT WAS MET BY A PLEA IN ABATEMENT. . , ; sional q Conceding ‘the truth of the ptea, plaintiff applied for and had appointed, a receiver, and then asked that he be substi- _ tufed as plaintiff. The right of substitution was denied because, ; og = gee : : . upon dissolution, under Washington Statutes, title to the cor- porate property vests in the Trustees. The Court held: “Such being the situation and status of the corporate property, no right to any part thereof became vested in the receivers appointed by the Court below, and they can have no right to be substituted as parties to the action.” Consistent with ether cases, the Cagurt held that the Minne- sota statute extending corporate life was enacted solely to reg- ulate domestic corporations, and, of course would not apply to : a foreign corporation. | The text of Thompson on Corporations, >. based upon these decisions (3rd Kd. 40), like a stream, ean rise no higher than its soured. | | Morgan vo N.Y. N: itl. Bldg. & Loan Assn., 73 Conn, 151: 46 Atl. 877, aor $s is, We submit, not in point. MeRae v. Kansas City Piano Co., 69 Kan. 457; 77 Pac. 4; ” ‘simply holds that in the absence of a statute continuing the corporate entity for the purpose of suit, dissolution abates action. The Court said: . “itis only in virtue of some statute authorizing it * * * that these results may be avoided, or pending proceedings may be further roe uted, or judgments already ren- dered, enforced.” a “Both the Kansas and Missouri statutes (Missouri being the state of domicile and Kansas the, foreign), were examined to find an applicable survival statute. In First National Bank of Selma v. Colby, 21. Wall. 609; 22 L. Ed. 687, suit. was brought ‘against a dissolv ed National Bank. ON A , id “y z PLEA IN ABATEMENT, the. Court held that the artenn abated because there’was no survivorship statute, saying: oer This is the.rule with regard to all corporations whose chartered existence has come to an-end * * * unless, by statute, pending suits be allowed to proceed ‘to judgment notwithstanding such dissolution.” That the. Court seriously consideéted the law of the forum as applicable, is apparent from the use of this language: “No such enactment is found in the Act of Congress * * * NOR IS THERE ANY PROVISION KLSEWHERE.” Combes v. Milwaukee & M. Ry Co., 89° Wis.: 297; 62 N. W. 89, the Court considered the case as presenting a common law question. No survivor statute was involved nor any mention made of one. | i. i Mua v: Potomac Co., 8 Pet. 284; 8 L. Bd. 945. A PLEA IN ABATEMENT was ve ry prope rly ‘sustained ‘ because of the dissoltition . of the defendant corporation. No survival statutes mS involved: Venable v. Granite Co., 185 Ga. 508; 69 S. E.-822; 32 L. Rew (NS) 446. | | ; . « No saving statute was involved, and the corimon law rule prevailed. The Court makes special mention of the probable effect of a saving statute, in these words: “It has been held in many cases that, if a corporation becomes extinct pending a suit to which it is a party, the - suit thereby abates*as to such-corporation, and any judg- ment thereafter rendered against it is,a nullity, unless - some provision is made for the further prosecution of the suit by the laws of the state in whicit the suit is pending.” ' In Pendleton v. Russell; 144 U. S. 640; 36 L. Ed. 574. 2 ‘‘/ survival statute was involved. The Court very. properly applied the common law rule. ‘Roche v. McDonald, 275 U. . 449; 72 L. Ed. 365, 25. de ail 26 concerns the full faith and credit clause. It announces no new ~ nor any applicable principle. Neither does Converse v. Hamilton, 224 U. S. 243; BC L. Ed. 7 49. The Court in that case said: “True, the full faith and eredit clause of the Consti- tution is not without well recognized exceptions, as is pointed out in Huntington,v. Attrill, 146 U.S. 657; 36 L. nd. 11283; Andrews v. Andrews, 188 U.S. 14: 47 L. Ed. 366; and Natl. Ex. Bank v. Wiley, 195 U.S O57 ; 49 L.°Ed. 184.” “ In Hancock ‘N@tl. Bank Vv. Farnum, 176 U: s. 640; ' 44 L. Bd: 619, ‘the Court held that a stockholder was a privy of a bank, ‘end . | pia en __that-a judgment against the bank was a judgment against and binding upon a stoe kholder, to which full faith and credit ~~ ‘ be giv en. We fail to find any Sppncatien of its principles. to the ; case at bar. oo . XII. THE STATUTE al 1OW A DID NOT VEST FITLE - ‘2 CLARK. In Vol. 1, Clark on Receivers (2nd Ed.) p. 463, the learned author says; . “The statutes of: many states specifically euthedion the appointment of a receiver of corporations * * *. These statutes frequently provide that when a receiver is ap- pointed under such statutes, such receiver obtains not only possession of the property, and: (but) legal title to the same, and, having this legal title, such receiver is thereby able to go into a foreign jurisdiction and sue in the courts of such foreign jurisdiction * * *. Some statutes go farther * and provide thaf, an ordinary equitable receiver of. a cor- - .. poration, or of Yndividuals or of a eb iat shall be _vested with title to the pr operty.” Again inVol. 1, Clark on Receiv ers (2nd eg Sec. 341, it is said: “A receiver has no title tothe fund, but simply acts as , the arm of the court. In:the absence of some conveyance (or) a statute vesting the property of the debtor in him, he cannot sue in the courts,cf a foreign jurisdiction.” | | 27 See also Vol. 1, Clark on Receivers (2nd Ed.), Sec. 346. Upon an examination of these authorities it will be ascer- tained that thé statute must specifically and not wt tite grant the title. .- y —, An examination of the Legislative Act. found in. the a Code as Sec. 8613, C-1- as set forth i petitioners brief, .dis- closes that it pecame effective an $ 9, 1929. The title to that -act reads: “An act making “The Insurance Commissioner of the - State of Iowa the Receiver or Liquidating Officer for In- surance Companies, Associations or Insurance Carriers.” Since the title of the act would not indicate any intent to vest. the receiver with title, the argument that ‘there is an im- plication falls without force. In Clark on Receivers (2nd Ed.) Vol. 1, p. 181, Sec. 146, it is said: . “Statutes which abrogate or abridge chancery courts generally are to be strictly construed, and if the restric- ‘tive purpose is not clear it will not be extended by con- | striction.” For an application | of all of these principles see Zacher v: Fed. Trust & Safety Valve Co., 106 Fed. 598... ~ Therein was involved the Cannecticut statute. Relfe v. Rundle is clearly distinguished and the Court de- © clared that inthe absence of a statute vesting title, the re- | ceiver became a mere equity receiver. : See also Clark on Revalvers (2nd Ed.), Vol. 1, pp.- 811- 12- 13. The question may be asked as to where title is reposed. In Vol. 1 Clark‘on Receivers, ~~ 347 (2nd Ed.) the learned author suggests that it may be a ‘Hittle difficult to determine exactly where title reppses, but it is suggested that the court has dominion over the property, and can order its disposition. . 28 ' It would seem immaterial as to just where the title is reposed. Of course it must be understood that the court may by its de- cree, invest an equity receiver with title, but unless that is pursuant to a statute, the receiver does - thereby obtain extraterritorial authority. oe | Cases distinguishing Relfe v. Rundlagyo3 U U.S. 225. 26 L. Ed. 357; \ *In Sterrett v. Second Nat'l Bank, 248 U.S. 73; 63 : L. Ed. 135, the Court analyzes many of the decisions handed dows by this ‘Court up to that date, and declares that the doctrine of the Sterrett case-has been the doctrine of this Court since*the de- cision in Booth v. Clark, 17 How. 822; 16 L. Ed. 164. Other decisions of this Court on the subject are: Hale v. Allinson, 188 U. S. 56; 47 L. Ed. 380; Great Western Minn. & Mfg. Co. v. Harris, 198 U.S. _ 561; 49 L. Ed. 1163; Keatley v. Furey, 226 U. S. 399; 57 L. Fd. 273. : In Sterrett ¢. Second National Bank, 248 U. S. 73; 63 L. Ed. 135, the Court had under cohsideration a statute of Alabama in order to ascertain therefrom whether or not that statute would cast the case under the-doctrine of Booth v. Clark, 17 ; How. 322; 15 L. Ed. 164, or under the doctrine of Rélfe v. _ Rundle, 103 U. S. 222; 26 L. Ed. 357, and quoted therefor in the discussion of the Alabama statiife. We submit that the de- cision is conclusive of this case.‘ 2 ~ Let us compare the Iowa Code provisions relied upon, with those of Alabama so constriied by the Court. The Iowa Codé provides that if certain conditions prerequisite are presented: “It, of he (the Court or Judge) shall decree a dissolution of - said Company and a distribution of its.effects, and appoint a ‘receiver therefor.” PY thie - a : vy 7 at 29 é See. 8964, Iowa Code set forth (R. 4). . ' The Alabama statute under consideration in the Sterrett | ase reads: “Shall appoint a receiver of all the books, sail and_assets of the ‘corporation * * * (who) shall, under the ’ direction of the Court, collect all debts due the corporation and selP all the property, real and persanal, of the corpora- tion, pay the debts thereof ratable or in full, as the funds™ realized may admit, and divide the residue after the debts and costs: are paid,” etc. & The next section of the Alabama Code — by the Court reads: ¢ «* * * The Court * * * may appoint a receiver - of all the property and assets of the corporation (who) under the direction of the Court must ‘exercise the same powérs and 4 perform the same duties as are required of réceivers:‘in -, the next preceding section, and otherwise manage the af- ‘ : fairs of the corporation pending final settlement thereof, ay as the Court shall direct.” 7 Of the two acts, the Alabama act would more nearly accom- plish the result contended for by petitioner, than the Iowa act; and this Court said that the, ¢ conclusion was not warranted es m “that title is vested in the receiver as assignee or as statutory . - suecessor of the insolvent corporation in such wise as to au- thorize the action to recdver in ‘a foreign jurisdiction. 7.2.3 The statutes do not undertake to vest in the receiver, an estate . ' in the property to be administered for the benefit of creditors.” 9 That the Iowa District Court has not given this statute the: ° breadth corttendeg for, is apparent from a reading of the de- . 1 cree (R. 21-26). ; e The Court must approve and control the.discretion of the receiver (Par. 10, R. 2425). No sale is valid until the receiver , report such sale to the Court and have the same confirmed a | (Par. 12, R. 25). The alleged decree of December 22nd, 1931 (R. 26-31) £ 30 ° ; | which petitioner dignifies as a decree, but which the Court itself declares is Gn “order as to suits and contracts in which Federal Surety Company was or is alleged to be‘a patty,” was ; “entered without notice and ex parte, on the 22nd day of Decem- ber, 1931, and can have no force whatever. In Booth-v. Clark, 17 How. 322, 15 L. Ed. 164, the very limitations made. by the Iowa decree of September » (R. 21-26), as we have called them to the attention of the Court supra, were sufficient for this Court to declare that the receiver there under consideration was a mére e equity receiver. . . The Court said: “Whatever may be the operation of the decree in re- spect to the receiver’s powers over the property of the debtor within the state of New York, ard his. right to sue for them there, we do not find anything in the cases in the New York reports showing the receiver’s right to. repre- sent the creditor or creditors of the debtor in a a - jarisdiction.” °. Commenting upon his — authority the Court further gays: “He is a ssliinaiiiities of the Court, and may by its direction, take into his possession every kind of property * * *- but it is not considered: in every case that the right to the possession is transferred by his. appointment "2, When appointed, very little.discretion is allowed to: ‘him, for he must apply to the Court for liberty to bring or de- fend ‘acti to let the estate, and in most cases, to let out moneys “7 °™ In Hale v. Allinson, 188 U.S, 56; ATL! Bd. 380, the Court had under consideration whether or not.a ‘Minnesota receiver was vested with title under the statute authorizing : the Court to “appoint a receiver of the same,” and held that it did not operate to vest him with title. Commenting upon the | statute and of the decisions of Minnesot&, the Court said: : “This language would seem to indicate that there is nothing in the statuté which prevents a receiver from * maintaining an action in a foreign state. There is po hold- ing that the statute.itself provides in terms for such an action, or empowers a receiver to maintain it, or that-it . transfers any title in the fund to him.” | Again the Court says: “It seems also entirely clear that the receiver povided for in Section 5906 of above quoted statute, while*not.the receiver mentioned in Section 5897, is yet simply one to - be, appointed in aid of the court * * * if the court chooses to appoint him.” In Keatly v. Furey, 226 U. S. 399; 57 L. Ed. 273, the Court had under consideration a statute of West Virginia providing for the receiver taking, “charge of,” and administer- ing the assets, and for the bringing of suit and the conveyance of property in the corporate name thereafter. ~ The Court, in commenting on it said: “It seems, to be sure, that in September and October, the local West Virginia Cturt purported to authorize and . confirm a deed by a special commissioner ‘to the receiver, but if the statute gid not in‘itself constitute the receiver the universal successor of the corporation (See Chipman v. Mfg. Nat]. Bank, 156 Mass. 147-149, 30 N. E. 610), it ~ may be doubted whether the déed had extraterritorial ef- - fect. See Fall v. Eastin, 215 U. S. 1; 54 L. Ed. 65; 23 L. R. ‘A. (NS) 924 * * *. The argument is strong to support the judgment of the court below, if no title passed.” ' Learned Counsel for petitioner {n their brief, page 45, after . indicating that there may be a doubt as to the effect of this “/ decree declare “to imply a transfer of the title to the Iowa Commissioner essential to carrying out, the trust imposed on him by the statute, is but the application of an axiom: well known to the law of trusts.” ) The decisions of this Court would seem to be a complete answer to that suggestion. The statute itself, contemplates a mere equity receiver. The judgment which petitioner has under attack, appears in the judgment roll regular in every respect (Tr., 49-64). As . “~y » “ o 31 °° 320 opposed to that judgment there is a record which fails. to dis- | ‘close wherein any Court having jurisdiction, ever passed upon: the points made the basis of petitioner’s contention at this time. | . XIII. ONLY ONE JUDGMENT OF THE IOWA COURT: Learned Counsel seemed to find it important to dignify both _ the decree of the Iowa Court entered on the 25th day of Sep- tember, 1931 (R. 21-26), and the “order as to suits and’ con- tracts to: which Federal Sur ety Company was or is alleged to be a party,” made on the’ 2ind day of December, 1931, as DECREES The latter is in no sense a decreé and does not rise to any dignity whatever further than in harmony with the label ' placed upon it. It would not be indulgirig too strong a presump- tionsto say that it was quite“apparent to Receiver Clark and his Counsel from a consideration of the two sections of the— Iowa ‘Code (R. 27-28), that clearly See tion B64. of the ‘Jowa ' Code of 1927, ‘did: not rise, to a dignity sufficient ‘to permit the application of the doctrine of Relfe versus Rindle, and that it Was necessary to spreqd something upom the record which would make it appear that the Court had acted under, not only that section, but under Section 8613, C 1, and in a manner dif- ferent than the plain phrasing of the decree of September 25th,,. 1931, would warrant. It must have been perceived that the pro- visions of the latter section, being in the alternative, should have been judicially exercised in order that a contention ‘such as is made here, could be plausibly presented. se We must strenuous} object to the classification of this ex parte order made without process,. being dignified as a judg- ment or decree to which any faith or credit whatsoever must © : 33 be given. a While the Court might have power ta amend 2 ‘j@Gfement i if suitalle steps, including due notice were shown to have been taken, the judgment would not even be amendable to include something which the Court might have had jurisdiction to in- ‘sert therein, but failed so to do. It will be seen that under any - eonstructién of the Iowa statute, the Court would not have had ‘authority to insert what is embodied’ in the ex parte order of December 22nd, 1931, | | - Freeman on Judgments (5th Ed.) Vol. 1, Sec. 141 says: “The general power to correct clerical errors. and omis- sions does not authorjze the Court to répair its own in- action, to make the récord and judgment say what -the Court did not adjudge, although it had a clear right to do _ so. The Court cannot, under the guise of correcting its rec- ord, put upon, it an ‘order or ‘judgment it never made or ‘re sndered, or add something to either which was not orig- - 2 inally included, although it might or’should have ordered or adjudged in the first instance, It cannot thus repair its, own lapses or Omissions. to do what it could legally ‘and pruperly have done at the right time.” We do not concede that had the Court in its decree desig- nated Clark as Liquidating Officer, it would have made any difference in view of what we shall preschtly present. It is suf- “ficient to say that when carefully analyzed, this later ex parte order r affords the only color for petitioner’ s argument. y , The following authorities will bear upon a consideration of a proper construction of both the decree and this ex parte or- der. The decree ig not phrased in words of the present tense. This is one of the requisites of a valid judgment. C. M. Co. v: M. O. P, Co., 27 Mont. 152; 69 Pac. 714. It is contrafy to all approved forms of judgment. ¢ 33. J. 1192). | =. 4 “The only authority of the Iowa statute was to require the Federal Surety Company, “to_ show cause why its business -? 34. shall not be dissolved.” We are obliged to give strained construction to this statute to work out from it any warrant “of authority to dissolve ‘the. corporation,, and appoint any other than a Chancery Receiver, whether either of the statutes relied upon by petitioner is con- sidered. The dissolution of a business would appear to-be some- thing quite different from the dissolution of -the“ corporation - itself. See 14-a C. J. 1120. The giving of full faith and ‘credit is “not a one sided requirement. Petitioner Clark assumes the ’ -ytght to ask this Court to ride down the Montana Constitution and statutes quoted in the opinion of the Montana Court. ~ Section 6212 Revised Codes of Montana, 1921, after requir- ing a foreign insurance company to make an appointment of a - service agent in Montana byspower of attorney, declares: “Said power of attorney shall stipulate and agree on athe part of the company, corporation, or assocmmtion that any lawful process against the same which is served on said attorney shall be of the same legal force and talidity — as if served on the company, corporation or association, and that. the authority shall continue in force so long as the certificate of membership, policy, or liability remains, outstanding against the company, corporation or associa-- tion in this State.” ‘ - Singer & Talcott Stone Co. v. Hutchinson, 176 fil. 48:51 N. E. 622. é Illinois, it seems has two statutes; one lida corporate | capacity of a dissolved corporation for two years, “for the’sole ‘purpose only of collecting the debts due to sdtd corporation, and selling and conveying the property and effects thereof. ” There is then a statute akin ‘to See. $212 Montania ad . 1921, and reading: i -“The dissolution, for any cause whatexer of : any cor- poration created as aforesaid. shall notstake away or im- ‘ pair any remedy given against such corporation; its stock- holders or officers, for any liabilities incurred pr evious to its dissolution.” s » ; ~— . ‘ins . Se i wo o's (= — -_ OF tw 4a Ry , i 35 The Montana Court quotes Section 6013 Revised Codes of 1921, and construes ‘it in harmony ‘with similar constructions . by ocher sti ate courts. These: statutory provisions should have no faith nor credit in the eyes of the petitioner. ; ma | XIV. WHILE THE IOWA COURT DID NOT EXERCISE THE AUTHORITY OF SEC. 8613, C 1 (R. 28), THERE IS AN IM- PORTANT MATTER IN CONNECTION WITH THAT SEC- TION FOR THE CONSIDERATION OF THIS GourT. That was a part of the acts of the Forty-third General! “sissembly of Iowa which was in session from January to April, | 1929. If Federal Surety Company imported its general statutes to Montana at some tame prior to 1925, at which time it was doing business in Montana, and furnished the bond: which oc- casioned the liability “(Re 56), IT DID NOT IMPORT THIS STATUTE. | : XV. PETITIONER DEMANDS THAT HIS JUDGMENT AND .THE TOWA STATUTES SHOULD HAVE SUPREMACY OVER VALID MONTANA STATUTES. HE EVEN INSISTS ‘THAT A STATUTE OF IOWA ENACTED LONG AFTER THE ENTRANCE OF FEDERAL SURETYCOMPANY INTO MON.. ~ TANA, SHOULD CONTROL STATUTES OF MONTANA. etitioner must take this position therefore, “that having agree ‘d to be bound by the Montana statutes, Federal Surety Company, although not having any limitations in its cha irter for the-appointment of a liquidating officer such as he claims were afforded by later Iowa enactment and the application of the doctrine of Relfe vs. Rundle thereto, that he can bring in “+ all later Iowa enactments to his aid. To permit him to do so would impair rights accéiled to Montana creditors by virtue of a valid law of, Montana. | $6. er : It is elementary law that the general public policy of a ‘state, when it violates no principle of constitdtional law, is - controlling. | . - Inat least two other. states besides Montana, viz: Kentucky and California,,a constitutional provision ‘similar to Article XV See. 11 of the Montana C onstitution, is found. This ( ‘onsti- tutional provision is found in Article XII See. 15 of the Cali- fornia Constitution. Cal. Jur..217, See. 701, ~The Kentucky case of Castle y. Acrogen Coal Co., 145. Ky. SOL; 1 10S. W. 1084, also applies the Kentucky ¢ ‘onstitution, The Federal ( Court in Williams v. Gold Hill Min. Co., 96 Fed. e 15-4, has held the California C onstitution to declare the public 7 S e ce tes policy of the state with regard to foreign cor porations, and applied it in harmony with the: California declaration on the - subject. We direct ‘cane of Clark: \v. Supreme r ‘ouneil C.-F. 146 Cal. 598; 80 Pac. particulariy to the jattention of the Court, the “931g refusing to permit a foreign receiver such as Clark, to appoint an ane ilary receiver in the state, and take away assets levied upon by local creditor s in accordance with valid Call- fornia laws. = See also Lackman v. Supreme Council,42 Cal.22; 75 Pac. 383 ; Borten v. Brines-Chase Co., 175 Pa. 209; 34 Atl. 597; 53 C. J. 406° +: . THE. IOWA VIEW OF THE EFFECT OF JUDGMENTS SUCH AS THE ONE AT BAR, IS IN HARMONY WITH THE CONTENTIONS OF RESPONDENTS. - In Schloss v. Met. Surety Co., 149 Ia. 382, 128 N. W ' $384, f ¢ 87 2 is found a complete analysis of this very situation. The now Court differentiates Relfe vs. Rundle. We commend the read- ing of this case with a view of ascertaining the public policy " . in Iowa, and the construction which lowa places upon judg- ments of like character to the one sought to be enforced in this case. We consider the expressions of the Iowa Court in this case practically conelusive on facts so similar as to be almost ‘identical. In.other words, if the judgment at bar is to be given the force and effect that it would be given in Iowa, then what — effect the Iowa Court declares it would give toa similar judg- ment coming to it from elsewhere, is conclusive. . The later act of the Forty-third General Assembly (which was in. session from January to April, 1929); declaring, “The Yommissioner of Insurance henceforth shall be the receiver . and/ or liquidating officer for an insurance company,” etc., does not indicate any enlargement of his powers or suggestion of a trust. He was not sejected as acne officer by the decree of September 25th. i The word “liquidating” from which the words “liquidation” ' or-“liquidator” are derived, means, according to 37 C. J. 1263: . “to adjust; to ascertain or reduce to precision in amount; to ascertain‘the balance due; to whom due, and to whom payable; "to clear away, to lessen a debt; to clear from obscurity ; to clear up; to determine by agreement the precise amount of in- | debtedness.; to extinguish ap indebtedness ; to pay: to pay and settle; to reduce to precision in amount; to satisfy; to settle.” It will be seen that in no sense is there any implication of the passing of title. The words of nearest analogy to “liquid- ating officer,” are “liquidating partner,” 37 C. J. 1264. He is declared to be “the partner who, upon the dissolution or in- solvency of the firm, is appointed to settle its accounts, collect 38 Cit assets, adj ust claims and pay debts.” W hatever may have been the en intent in the use ‘ot “receiver and/or liquidating officer,” it is clear that it meant that the ourt might appoint the Commissioner as receiver, .and use its discretion with regard to whether or not he should be appointed as liquidating officer; whether that phrase has greater or jess significance than that of receiver, _ The entire decree will be searched in vain for the use of any other word or phrase in that connection, than “receiver.” The use of this phrase (and/or) in contracts seems to be en-— tirely permissible, and: is said to be equivalent to a direction that it be construed SOAs to best axecord with the equity of the “situation, using g either conjunction, but such usage cannot : ap- ply to statutes, since the Legislature, in making its laws, must exercise ifs own law and leave nothing to the mere will and caprice of the courts. . | State v. Dudley, 1068S. 364; 169 La. 872. In any event if it were a matter of discretion in the court, the decree of September 25th indicates no exercise of the Court's discretion. It is very important that under the guise of - instructions and without binding effect, Clark: who was inter- ested in the enlargement of the scope of the decree presented for signature, the ex parte order of December 21st. | | XVIL. ? ; DEVOLUTION OF TITLE DISC USSED IN. FORMER BRIEF. We have, in our original brief, discussed the question of devolution of title. We shall not again burden the Court with a — Ye-citation of the authorities, nor with the discussion pertain- taken therein. ing thereto as found in that brief. , We do not abandon our position or any “position we have Pte ore ies wa os emitentions, RESUME. The Respondents: respectfully quiet, this resume of. ‘their There has been no attempt on the part of the Montana ( ‘ourt to'refuse full faith and credit to the lowa judgment and decree. | 2.."Phe judgment, the effect of which petitioner would like Lo dispel, is a valid, enforceable and unattgcked judgment. 3. There was no altempt made by ie ae to appe ar in that- independent case and dssert a plea in abatement. Clark is indirectly attacking a judgment valid upon its face. 4. ‘Respondents are asserting rights which-grew—ap-ainder—— ri nat tute existing at the time Federal Surety Company entered “the state, -and to which Clark owes the duty of giving full faith and credit: under the same constitutional provision that he invokes. . *- retitione ‘rr seeks to ride down the Montana Constitution and ind lvy virtue of a statute enacted in 1929, years after the enactment of the Montana statute, and years. after Federal Surety Company ° entered Montana, the accruing of respond- ents’ cause of action, the. initiation of their suit, and the vest- ing of. their rights under the remedial provisions of the Mon- . tana statute. : : . The lows Judgment construed with the utmost liber- “ins in conjunction with statutory justification, ‘casts the rights of Clark into the category of. cases determined-in Booth vs. C lark, supra, and is clearly distinguishable from the cases asserting the doctrine of Relfe vs. Rundle, supra. 7. The Montana statute is’ a remedial statute and binding 2s to all matters of procedure upon those asserting judgments from sister states. | A | ~ es, . The, judgment assetted by (Jark as affording right: viii for, was asserted, “not in an agtion instituted by him but in-an aetion instituted by another, whie h action was o! such character as to fail to give the Court in which the judg: . Ment was asserted, jurisdiction. We respectfully submit that the judgment of the Montan: Court should. be affirmed. Respectfully submitted. (© LOUIS P. DONOVAN... Ws AL LEONARD DeKALB. ighits him, in of lpr Ps) tana =) * +e ° wn e S ‘4 * ra .- "" - --2 . . . ” ’ . ° fo] 6 oa ° 7 e- a ‘ Of pO ante Lana” 6 ouNneel . td 2 7 . . . . + e * es . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0052%3A6. Public record. Not legal advice.