Mullin-Johnson Co. v. Penn Mut. Life Ins. Co.

On removal from the superior court of the state of California there was filed in this court, on July 8; 1932, an action entitled Mullin-Johnson Company, a Corporation, Plaintiff, v. Penn Mutual Life Insurance Company of Philadelphia, Pennsylvania, a Corporation, Defendant, Law No. 19275-S. The allegations of the complaint show that the plaintiff is a domestic corporation, and that the defendant is a foreign corporation. Thereafter, the cause being at issue, it was set for trial on October 9, 1934. The day before trial the attorney for plaintiff dismissed the action under the provisions of section 581 of the California Code of Civil Procedure. Immediately thereafter plaintiff corporation “in propria persona” filed in this court the above-entitled action, the parties being the same and the allegations of the complaint identical with those in the first action.

It is undisputed that the corporate powers, rights, and privileges of plaintiff corporation have been suspended for nonpayment of state taxes as provided in the California Bank and Corporation Franchise Tax Act, § 32 (St. 1929, pp. 19, 33, as amended St. 1931, p. 2228).

Defendant moves to dismiss, contending: First, that the…