Cooper v. Most Nursery Co.
Cooper v. Most Nursery Co.
Opinion of the Court
Mrs. M, A. Cooper sued out an attachment against P. P. Most Nursery Company, alleging the non-residence of the defendant, as the ground of attachment. The attachment was served by the service of summons of garnishment on a garnishee residing in Floyd county, on June 7, 1910. Upon the filing of a declaration in attachment the defendant demurred, seeking to interpose the bar of the statute of limitations. The court sus-’ tained the demurrer and dismissed the plaintiffs action, and thereupon the plaintiff sued out the present writ of error.
According to the allegations of the declaration, P. P. Most Nursery Company, whose name imports a corporation, is not a resident of the State of Georgia; and it is not alleged that the defendant was at any time a corporation of this State. If the defendant ever was a non-resident corporation, it must be' presumed to have continued to be such; because it could only become a corporation of the State of Georgia by obtaining a charter here. The lower court allowed an amendment to the petition, setting up that at the time the cause of action accrued this non-resident corporation had as an agent residing in Floyd county one Maples; and by the amendment it was sought to relieve the bar of the statute of limitations by allegations to the effect that Maples represented that P. P. Most Nurséty Company was a Georgia corporation, which was false, and the statement was made with intent to defraud, and that after the plaintiffs right of action accrued, she made every endeavor to locate Maples and the defendant, but failed to do so.
' The only question in the case is whether the amendments to the plaintiff’s petition are such as would relieve from the bar of the statute of limitations a cause of action apparently almost six years old, in which the plaintiff sought to recover damages resulting
The allegations of the petition, as a whole, do not tend to distinctly negative the inference that the P. P. Most Nursery Company may be doing business in Georgia, and that they may now have, and may have had for six years preceding the suit, agents in Georgia upon whom service could have been perfected; but, as we have previously remarked, the mere fact that the plaintiff was unable for six years, after' the discovery of the fraud, to aseer
The fact that Maples told the plaintiff that his principal, the P. P. Most Nursery Company, resided in Georgia, is of no consequence. The allegation which might have relieved the bar of the statute must have been that P. P. Most Nursery Company, as a matter of fact, did reside in Georgia; and yet, if the Nursery Company merely resided at some time in the past in Georgia, being a Georgia corporation, the removal of the corporation to another State would not of itself change its legal residence. In order to become a resident of another State, a corporation must be chartered in that State, or at least its principal office must, by its charter, be declared to be in that State; and, as a corporation can have no legal1 residence except as determined by its charter, the incorporation of a domestic corporation in another State would create it a corporation of that State, as a new corporation, entirely apart from the fact that there may have been a previous incorporation in some other State; thus rendering the previous residence of the parties who might be corporators or stockholders in the corporation, whether in this State or in some other, totally immaterial. The plaintiff could not have made an allegation upon this subject which would have been of any value, because the residence of a corporation is fixed by its charter, and the absence or non-residence of a debtor who never resided here is no reply to the statute of limitations. 9 Enc. Dig. Ga. Rep. 36; Edwards v. Ross, 58 Ga. 147. ■ • Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.