The advocate. [volume] (Charleston, W. Va.) 1901-1913, 1910-02-03
TO REVERSE
WHEN ABSENT \ WITNESS VIII
VAS NONRESIDENT

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This court will not REVERSE the
Judgment Of the trial court for refus-
Ing to grant a continuance to one Of
frhe parties on account of the absence
OF material witness when it an
pears from the record that such wit
ness 1s nonresident, of the State.
and the party desiring his testimony
could. have taken his deposition be-
fore the trial, Is a point in the sylla-
bus Of an opinion handed down by
the supreme court Of appeals Tues
dayt written by Judge Williams, in
which the-court- affirmed lower
Fcourt Of Mingo county in the case of
Mate Creek Coal Company VS.. Fred
G. Todd Ct ais.
J."SulHVan and G. S, CAL
der-formed- a coal selling agency and
were sued by the coal company,
which recovered q, judgment Of ST.
O3O.23 in the lower courts. Sulli-
van lived in Cincinnati. and because
OF illness was unable, to be present.
A new trial was asked for this rea-
Lumber, Company VS.. Coal Company.
a. Judge .Poffsnbarger wrote the
opinion of the count In the case of
tile Blllmyer Lumber Company vs.
Merchant'sr Coal Company of West
Virginia, from Preston county, in
which the lower court was affirmed
efter~the decree was modified. The
court held that the loss by a corpor-
alton Of its right to do business in
the State does not prohibit 1t from
Being sued in respect to a contract
made while 1t was lawfully doing
business in the State. In his syIla-
bus Judge Poffenbarger says:
The assumption by one. corpora
ton Of all the indebtedness of an
other Of whatsoever kind and it's
agreement to pay and discharge the
same, when due, as the considera-
ton for the conveyance to it Of all
the property of another corporation,
bind the former to pay all the liabil-
tiles Of the latter, though some Of
them, such as demands FOR unliuui-
dated damages, may not be debts in
the technical sense of the. tenn .,
H. when property has been convey
ed in consideration Of the, aasuu,p-
ton, by the grantee, of, all, The, In
debtedness Of the grantor, any cred
~
property in the hands Of the grantee
with his debt and sub ect the same
to payment thereof. .....I .. - f..
Ihc statutory provisions Of this
State, modifying the rule Of comfy
and limiting the powers and capaci-
ties of foreign corporations in this
jurisdiction, do not affect their rights
to sue and make defense in actions
or re, IN, H.,
pertaining to contracts validity made.
The loss by a foreign corporation
OF its previously acquired right to
DO business in this State does not,
affect its capacity TO Sue or be sued
IN respect TO contract made or
right vested when it was lawfully
doing business in the State.
. IF, after an action at law against
foreign corporation, ightfully do
ing business in the State, has been
properly commenced, such corpora
ton be deprived of its statutory PRIV
1legeE, the action may be prosecuted
to judgment as effectually In all
respects as II the defendants right
to do business in the State had not
ceased.
In such case, the judgment Is
DinuInS on InlTQ party VINO, before
rendition thereof, assumed the pay
ment Of the debt or liability involved
In the action.
THE provisions of chapter So Of
the code, making the assets Of ex-
pred, dissolved and insolvent corpor-
atoms trust funds for the benefit Of
their creditors and stockholders, and
authorizing suits in equity by credi-
tors ahd stockholders, and authoriz-
Ing suits in equity by creditors to
wind them up, are not exclusive
remedies and do not, Of Themselves,
take away the right to proceed to
judgment and execution.
I'm a suit in equity to charge a
debt upon property, encountered by
mortgages to secure large issues Of
bonds, in which the trustees are
clothed with. ample powers to pro
tect and enforce the rights of the
holders Of the bonds, it is uiineces-
sary to, make the bond holders par
ties. since the truateess heinp par
ties, fully represent them. &,
+ "A bill In equity against a non.
resident, as to, whom no process 9TH
or than ai, order Of publication, duly
ptblishea and posted, has been. TAX
on, cannot be taken for confessed az