Appellant contends that the complainant was estopped from bringing this foreclosure suit at the time it was brought on account of an agreement which was made between the complainant mortgagee and the defendant mortgagor for an extension of time provided the defendant mortgagor made certain improvements on the property, which improvements the defendant made, and on this appeal it is contended in her behalf that the lower court should be reversed upon the authority of the case of Moses v. *Page 396 Woodward, 109 Fla. 348, 141 So. 117. However, as there is some conflict in the testimony on this point we might not be authorized to reverse the lower court on that account. But there is another error shown by the record in this case, which is duly assigned and insisted upon in argument, which in my opinion calls for a reversal. This bill for foreclosure was filed by a New York corporation on February 21, 1933. The defendant, on April 3, 1933, filed a motion to dismiss the cause on the ground that the complainant foreign corporation had not, on January 1st, 1933, nor up to the time of the filing of said motion, complied with the provisions of Chapter 14677 as amended by Chapter 15726 of the Laws of 1931 by the payment to the State of the tax required by said statute in order to entitle said corporation to do business in this State and in order to permit it to maintain any action in any court of this State.
Section 5 of this Act provided that "any corporation failing to comply with the provisions of this Act for six months shall forfeit its corporate and charter privileges and shall not be permitted to maintain any action in any court in this State until such reports are filed and all fees due hereunder paid. On January 1st of each year the Secretary of State shall make up a list of the corporations of record in his office which have failed to comply with the provisions of this Act and shall mail a copy of such list to the Clerks of the Circuit Courts, the Civil Courts of Record, the Circuit Judges and the Justices of the Peace of this State."
The language of this section indicates that the courts of this State are given the power, of their own motion, to dismiss any suits filed by a corporation which has not complied with the provisions of this Act, as soon as the suit is filed.
On April 26, 1933, the court made an order denying the above motion to dismiss and gave defendant twenty days *Page 397 in which to answer the bill of complaint. On May 3rd the court extended the time for filing answer to twenty days from the date of that order, and on May 22nd a further extension was made, on motion of defendant, to June 5, 1933, and on May 27, 1933, the defendants filed their answer. The corporation complainant had not complied with the statutes at the time the answer was filed.
The receipt of the Secretary of State, for the payment of the tax required by the statute, appearing on page 79 of the record, is dated June 17, 1933, but the testimony by one of the attorneys for said complainant corporation, appearing on pages 47 and 48, was to the effect that the tax required by the statute had actually been paid on or about May 29, 1933.
Thus it appears that at the time the motion to dismiss for failure to comply with the statute was filed and denied, and at the time the defendants filed their answer, as required by the order of the court, the complainant corporation had not complied with the statute and therefore had no right to maintain the suit. Thus the court erroneously denied the motion to dismiss and erroneously required the defendant to file the answer to a suit which had been instituted by a corporation which had no right under our law to maintain a suit in any court in this State. Surely the subsequent payment of the tax did not cure this error. The motion to dismiss should have been granted and the complainant required to start its suit all over again after first having complied with the law of this State so as to authorize it to maintain the action in a court of this State? If this is not the correct interpretation of this statute, when, may it be asked, shall the tax be paid? May the complainant corporation wait until the day of the final decree, or the decree of confirmation, or until any day within the time within which the petition for rehearing might be filed? Or, *Page 398 is it not the duty of the court when a bill is filed by a corporation which has not complied with the law and the defendant moves to dismiss the suit, to promptly grant the motion?
In this case, the court not only denied the motion to dismiss, but made an order requiring the defendant to answer before the corporation had established its right to maintain the suit to begin with. It seems to me that if this statute is to be given any force or effect, the courts should grant motion to dismiss upon non-compliance, and that a failure to do so should be held reversible error.
Section 4 of Chapter 14677 provides that "Every corporation which shall fail to comply with the provisions of this Act within three months after July 1st of each year be deemed to be no longer exercising its charter or corporate privilege in this State."
It would seem that the principles laid down in Diaz v. Parkland Estates, 154 So. 199, would require a reversal of this case.
It is so ordered.
Reversed.
DAVIS, C. J., and ELLIS and TERRELL, J. J., concur.
WHITFIELD and BUFORD, J. J., dissent.