Peninsular Railway Co. v. Tharp

The plaintiff is a railway corporation formed by the Consolidation of two corporations, named the Peninsular Railway company, and the Peninsular Railway Extension company. Defendant Tharp is sued upon a subscription made by him to the stock of the Peninsular Railway Extension company before the consolidation. The consolidation papers were made and dated February 13, 1868, and filed in the secretary of state’s office February 16, 1868. The assessments sued on were made in the interval, on February 14th, 1868.

*507The statutes do not permit assessments to be made by an original corporation until after the articles are filed.— Comp. L., § 2298. Where such a corporation becomes consolidated with another, the statute declares that the merger shall take place “upon making the agreement mentioned in the preceding section, in the manner required therein, and filing a duplicate or counterpart thereof in the office of the secretary of state.” — Comp. L., § 2347. Any corporate action until this step is taken is premature. The new corporation, deriving its franchises from the state law,, cannot act until the state has the requisite evidence of its claim to corporate existence. The statute is the only source of such existence, and its conditions are imperative.

The assessments were therefore void, and no action can he maintained upon them. This being so, there is no occasion to discuss the other questions raised upon the record. The finding supports the judgment, as it shows, no cause of action, and the only error assigned is that it does not support the judgment.

The judgment must be affirmed, with costs.