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Scott v. Day-Bristol Mining Co.

December 31, 1914


Appeal from the Fourth Judicial District Court, Lincoln County; E. J. L. Taber, Judge.

McNamee & McNamee, for Appellant.

Chas. Lee Horsey and William E. Orr, for Respondent.

By the Court, Norcross, J.:

Respondent brought an action in the Fourth judicial district court in and for the county of Lincoln against appellant to quiet title to a certain mining claim in the Bristol mining district, Lincoln County, known as the “Twenty-Eight-Thirty Lode,” and to perpetually enjoin appellant from asserting any claim or title whatever in or to said property adverse to the respondent or in any manner interfering with respondent's possession thereof.

The complaint alleges that the defendant, appellant

[37 Nev. 299, Page 300]

herein, is a corporation duly organized and existing under and by virtue of the laws of the State of Maine; that the plaintiff, respondent herein, on the 9th day of August, 1911, made a valid relocation of a certain claim in the Bristol mining district, county of Lincoln, which was then open for relocation, designating it as the “Twenty-Eight-Thirty Lode,” and thereafter performed the necessary acts to perfect a valid relocation of a mining claim; that said claim was theretofore known as the “Inman Lode,” and as such was owned and claimed by the defendant corporation; that the assessment work attempted to be performed for said Inman lode for the year 1911 by said defendant corporation was actually performed on a patented claim owned by a third party, and was so performed outside the boundaries of said Inman lode, and that said work had no direct tendency or any tendency whatsoever to benefit or develop said Inman lode of said defendant corporation, either directly or at all; that said defendant corporation claims and asserts an interest in and to the mining ground embraced within said “Twenty-Eight-Thirty Lode,” adverse to plaintiff; that said claim thereto is without right, and said defendant corporation has no estate, right, title, claim, or interest whatever in said property or any part thereof.

The complaint was filed June 13, 1913, and on the same day summons was duly issued thereon. On the 17th day of June following the sheriff of Lincoln County made due return of service of said summons as made on the 14th day of June, 1913, by delivering to George E. Bent, general manager of the defendant corporation, personally, in the county of Lincoln, a true copy of said summons attached to a copy of the complaint in said action. On the 21st day of June following the defendant corporation appeared in the action by its attorneys, F. R. McNamee and Leo A. McNamee, by filing a demurrer to the complaint. Thereafter, on the 20th day of January, 1914, as appears from the minutes of the court of that day, the case came on regularly for disposing of the demurrer.

[37 Nev. 299, Page 301]

Counsel for the plaintiff interposed a motion to strike the said demurrer from the files upon the ground that the defendant corporation did, after the adoption of the act of the legislature, March 20, 1907 (Rev. Laws, secs. 1348-1350), and before filing the said demurrer, enter this state for the purpose of doing business herein, and at the time of filing said demurrer, and for a long time prior thereto, was engaged in doing business in this state; that said corporation, before commencing or doing any business in this state, did not file in the office of the secretary of state of the State of Nevada a certified copy of its articles of incorporation or other instrument of authority by which it was created, and had not filed in the office of the county clerk of the county of Lincoln, the county where its principal place of business is located, and had not in any respect complied with the provisions of said act. Counsel for the defendant corporation admitted the grounds upon which the motion was based to be true in fact. The motion was taken under advisement, and thereafter, on the 28th day of January, 1914, the court, in pursuance of the motion, ordered the demurrer stricken from the files. Thereafter, and on the same day, on request of counsel for the plaintiff, the default of the defendant for failure to appear and answer plaintiff's complaint within the time allowed for answering was entered by the clerk. Thereafter, and on the 30th day of January, 1914, the court heard evidence upon the part of the plaintiff and entered a decree, reciting the default of the defendant, in accordance with the prayer of the complaint. From the judgment the defendant has appealed.

In the reply brief of counsel for the appellant the statement is made that a few days prior to filing such brief the defendant corporation filed a copy of its articles of incorporation with the secretary of state and paid to that officer the statutory fee of one thousand dollars upon its capitalization of $10,000,000. The statement in the brief as to the recent qualification of the defendant to transact business in this state is not controverted.

[37 Nev. 299, Page 302]

No question has been raised in the briefs as to the right of defendant to be heard in this court upon the appeal, nor is any question raised as to whether the legal questions discussed are properly presented in the record. We shall therefor dispose of the main question of law presented for determination upon the assumption that it is properly before us for consideration.

The question discussed in the briefs is a very important one, and we find little, if any, direct authority to aid us in its determination. The legislature of 1907 passed an act entitled: “An act to require foreign corporations to qualify before carrying on business in this state, regulating and prescribing the manner thereof, ...

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